POINE

                            A STUDY IN ANCIENT
                          GREEK BLOOD-VENGEANCE

                                    By
                         HUBERT J. TRESTON, M.A.
                     PROFESSOR OF ANCIENT CLASSICS IN
                           UNIVERSITY COLLEGE,
                                   CORK

         _Rien de ce qu’ont pensé les Hellènes n’est indifférent
                 à l’histoire de la civilisation._—GLOTZ

                         LONGMANS, GREEN AND CO.
                    39 PATERNOSTER ROW, LONDON, E.C. 4
                            NEW YORK, TORONTO
                       BOMBAY, CALCUTTA AND MADRAS
                                   1923

                         _Made in Great Britain_




PREFACE


It has not been my purpose in writing this book to occupy myself in
expanding or discussing some articles written on Greek criminal law
in a learned dictionary of antiquities. While it is true that ancient
law, however crude and obscure its expression, is not so repulsive, so
inhumanly technical as medieval or modern law, and while it is also
true that a writer on Greek blood-vengeance cannot avoid an occasional
reference to legal formulae and technique, nevertheless I feel that a
merely legal treatise would not advance the prospects of Greek education
or our knowledge of Greek civilisation, for the simple reason that no one
but a professed student of ancient law could be induced to read it!

This work is intended rather as a supplement to the study of Greek
literature, history, and archaeology. The first part contains an analysis
of important elements of Homeric civilisation, an account of the
different strata in the Homeric society and of the religious beliefs and
practices of the Homeric Greeks. This section owes much to the pioneer
work of Ridgeway and of Leaf; it carries, so to speak, into remote
corners and crevices the light which their genius has thrown on the
general nature and structure of early Greek society.

The second part is concerned with the Middle Age of Hellenism (1000
B.C.-600 B.C.): it is an attempt to explain the social and religious
evolution of the Hellenes and to interpret the homicide laws of the
historical period in the light of that evolution. This section is
inevitably the most ‘legal’ portion of the work, but an effort is made,
even at the cost of what might appear excessive repetition, to avoid an
unduly technical exposition, and the literary aspect of the subject is
constantly emphasised.

The third part is an enquiry into the origin and development of the
legends which are found in Attic tragedy. These legends are permeated
with references to homicide, and I have attempted to render less obscure
and difficult the problems of blood-vengeance which they contain. As such
an attempt would be utterly impossible without a previous discussion
of the homicide laws of Greece, the account of these laws which I have
given in the second part of the work should be regarded as a necessary
preliminary to the subsequent analysis of these legends.

The extent of my indebtedness to modern writers on this and kindred
subjects is sufficiently indicated in the footnotes and the second
section of the Index. I must, however, express, in addition, my
obligations to Professor Goligher, of Trinity College, Dublin, for his
kind encouragement, assistance, and advice.

My best thanks are due to my friend and colleague, Mr. W. H. Porter, for
his generous co-operation in reading and correcting the proofs of this
work and for his valuable criticisms and suggestions. In particular, I
owe to him the alteration which I have adopted, on p. 195, in connection
with the restored Draconian inscription.

I should like also to record my appreciation of the accuracy and
efficiency of Messrs. Spottiswoode, Ballantyne & Co.’s Reader.

                                                                  H. J. T.

CORK, _June 1923_.




CONTENTS


                                                                     PAGES

                                 BOOK I

                             POINE IN HOMER

                                CHAPTER I

  SECTION I: The general principles of blood-vengeance, analysed
    and illustrated: modes of vengeance of modern races in the
    Balkans, in the Mediterranean area, and in South America:
    modes of the ancient Germans, the Anglo-Saxons, and the Welsh:
    Burgundian, Norman, Israelite systems                             1-11

  SECTION II: Nature of the Homeric Society: Views of Leaf and
    Ridgeway: feudal militarism and tribalism                        12-22

                               CHAPTER II

  The Pelasgian system of blood-vengeance: current views
    explained and criticised: author’s view: proofs from the
    text of Homer: question of a distinction between murder and
    manslaughter, and between justifiable and unjustifiable
    homicide: collectivity in vengeance                              23-63

                               CHAPTER III

  The Achaean system explained according to author’s theory:
    proofs from Homeric text: question of discrimination, amongst
    Achaeans, between murder and manslaughter, and between
    justifiable and unjustifiable homicide: no collectivity or
    solidarity in vengeance                                          64-77

                               CHAPTER IV

  Judicial aspect of homicide in early Greece: current views
    criticised: author’s theory based on distinction between
    Achaean and Pelasgian societies: arguments from survivals in
    historical times: meaning of δικασπόλοι βασιλῆες: the Trial
    Scene in the Homeric Shield of Achilles: origin of trials for
    homicide                                                         78-94

                                CHAPTER V

  Religious aspect of homicide in early Greece: current views:
    digression on evolution of Greek religion: ancestor-worship:
    nature-worship: animal sacra: image-magic: anthropomorphism:
    Achaean and Pelasgian contributions to Homeric religion:
    fusion of Achaean and Pelasgian dogma and ritual: religious
    aspect of kin-slaying amongst Pelasgians and Achaeans: origin
    and evolution of the Erinnyes: origin of homicide-purgation:
    comparison of Pelasgian with Achaean Erinnys, and of Homeric
    Erinnys with post-Homeric and ‘tragic’ Erinnys                  95-126

                                 BOOK II

                       POINE FROM HOMER TO DRACON

                                CHAPTER I

  SECTION I: Social transitions: fall of Achaean Empire and its
    causes: Achaean survivals: political changes in post-Homeric
    times: post-Homeric migrations: Sparta and Boeotia: the
    Hesiodic age of chaos: tribal stability and decay: evolution
    of the Attic State; aristocracy and democracy                  127-137

  SECTION II: Religious and legal transitions in post-Homeric
    times: Asiatic-Greek intercourse: compromise between Asiatic
    and Greek ideas adopted in regard to homicide: origin of
    Apolline purgation system: Apollo and pollution: rise of
    Apolline influence: organisation of theocratic nobles:
    origin of the laws of Dracon: proofs of author’s theory from
    Greek legends, from Plato and Demosthenes: extradition:
    pollution-doctrine and wergeld: question of legality of
    ‘private settlement’ for homicide in historical Athens         138-190

                               CHAPTER II

  The Draconian Code: restored inscription of 409/8 B.C. and
    author’s explanation: other Draconian homicide-laws derived
    from Demosthenes: Plato’s code confirms and supplements these
    data: classification of Attic homicide-laws as follows: (_a_)
    those relating to accidental homicide, to death caused by
    animals or inanimate objects, and to homicide by persons
    unknown: (_b_) those relating to justifiable and to justifiably
    accidental homicide: (_c_) those relating to manslaughter:
    (_d_) those relating to wilful murder: some problems suggested
    by these laws: origin of confiscation of property: evolution
    of State-execution: parricide and kin-slaying: historicity of
    Plato’s legislation regarding homicide                         191-242

                               CHAPTER III

  The Attic Homicide Courts: Attic legends concerning origin of
    courts for homicide: the accounts of Pollux, of Aristotle, of
    Demosthenes: question of γραφὴ φόνου: Plato’s _Euthyphro_:
    author’s theory of the origin of Attic courts for homicide:
    Dracon and the Ephetae: Solon and the Areopagus: the Exegetae  243-275

                                BOOK III

                         POINE IN ATTIC TRAGEDY

                                CHAPTER I

  Aeschylus: _Agamemnon_, _Choephoroe_, _Eumenides_, _Suppliants_
    and _Seven against Thebes_                                     276-302

                               CHAPTER II

  Sophocles: _Electra_, _King Oedipus_, _Oedipus at Colonus_,
    _Antigone_, _Ajax_ and _Trachinian Maidens_                    303-331

                               CHAPTER III

  Euripides: _Electra_, _Orestes_, _Iphigenia at Aulis_ and
    _Iphigenia in Tauris_, _Phoenician Maidens_ and _Suppliants_,
    _Mad Hercules_, _Heracleidae_, _Medea_, _Hippolytus_, _Ion_,
    _Andromache_, _Hecuba_, _Bacchae_, _Alcestis_, _Troades_ and
    _Helen_                                                        332-422

    CONCLUSION                                                     422-424

    INDEX                                                          425-427




POINE




BOOK I

POINE IN HOMER




CHAPTER I

INTRODUCTION

    SECTION I.: The general principles of blood-vengeance, analysed
    and illustrated: customs of modern races in the Balkans, in
    the Mediterranean area, and in South America: customs of the
    ancient Germans, the Anglo-Saxons, and the Welsh: Burgundian,
    Norman, Israelite systems.

    SECTION II.: Homeric Society; Views of Loaf and Ridgeway:
    feudal militarism and tribalism.


SECTION I

If we examine the various methods of blood-vengeance which have been
adopted by different peoples throughout the ages, we shall find that
they may be divided broadly into four groups or categories. Amongst
rude and savage races there exists or has existed a system of vengeance
which we may describe as a barbarous and unrestricted vendetta. In the
absence of any social machinery for the determination of blood-guilt,
or for the estimation of its varying degrees, a single deed of blood
provokes an endless series of retaliations: a hideous orgy of revenge
rages through the land, an orgy which no one may escape; for old men and
women and children perish, whether one by one, or in a general massacre.
The vengeance is at once collective and hereditary. It strikes at the
neighbours and at the most distant relatives of the murderer: it strikes,
too, at the children that are born when the murderer has been gathered
to his fathers. It ends only when there is hardly anyone left to kill,
or when a paltry sum of money is offered to placate a glutted thirst for
blood. It is a strange fact that such a system should have survived up to
comparatively recent times[1] in the Balkan States. It is generally but,
as we hope to show, erroneously maintained that such a system prevailed
amongst the earliest inhabitants of Greece about whom we have any certain
knowledge.

A second mode of vengeance we may describe as a personal restricted
vendetta. It is distinguished from the mode which we have just mentioned
by the absence of collective or hereditary punishment. It refuses to
visit the sins of the father upon his children or upon his neighbours.
The right to avenge remains with the relatives of the slain. They may lie
in wait for the slayer or, if he flees, they may dog his footsteps over
land and sea. But they dare not strike the innocent for the guilty. There
is some power, whether of military autocracy, or of public opinion, which
prescribes the bounds of their avenging. The system does not generally
include a regular tribunal for the trial of homicide, whether because
there is little difficulty, in certain social groups, in determining the
identity of the murderer: or because some primitive method of evidence,
such as the ordeal of medieval Europe, takes precedence of human
witnesses: or because a recourse to arbitration, in the private domain of
a king or of a squire, is too insignificant a procedure to have found its
way into any historical records. It is such a system that seems to have
prevailed in Serbia up to very recent times. It is such a system that, we
hope to show, existed amongst the Achaean caste in Homeric Greece.

A third, and for our present purpose the most important, mode of
vengeance is that which we may describe as the ‘tribal wergeld’ mode.
It consists essentially of a compensation, in the form of goods or
valuables, which is paid by the relatives of the slayer to the relatives
of the slain. It differs from our first-mentioned mode of vengeance in
the fact that satisfaction is paid in ‘money,’ not in blood, and in the
fact that payment is fixed by custom or law and is not of an indefinite
duration. It differs from the second mode in this, that the ideal penalty
is not death, but compensation or exile, and that the punishment is
collective rather than personal. The system is found only in tribal
communities, where the life of the individual is subordinated to that
of the group, and where property is frequently possessed and enjoyed in
common. It is, of course, true that all tribal societies do not adopt
this system, whether because temperament and environment foster a
blood-lust that money cannot appease, or because a religious law has been
superimposed upon the clans, or because a feudal or highly centralised
government has become strong enough to resist the demands of the clansmen
for compensation. But, apart from these special circumstances, tribal
communities tend to adopt the ‘wergeld’ system of vengeance. We have the
most ample evidence[2] of its operation in pre-medieval Germany, and
Wales, and Ireland and Scotland, amongst the Anglo-Saxons, the Franks,
the Wisigoths and the Vikings. We can see in ancient Israel an instance
of a land which has evolved beyond the wergeld stage. There came a
time when a theocratic legislator was sufficiently powerful to attack
the privileges of the clans, and to cry out, as with a divine voice,
‘Ye shall not take satisfaction for the life of a man that is guilty
of blood.’[3] We hope to make it clear that it was this system which
prevailed amongst the earliest inhabitants of Greek lands, who may, for
convenience, be described as Pelasgians. Owing to the great number of the
individuals who were liable to make or to receive compensation, and also
because of the social organisation of the tribes, we are not surprised
to find that a regular tribunal was frequently appealed to, and that a
trial, concerned more often with the question of payment than with the
question of guilt, was one of the most common events of interest in the
life of Pelasgian tribesmen. No wonder is it then that the poet Homer
gives a description of such a scene[4] and tells us that Hephaestus
had engraved it on the famous Shield of Achilles. This is the earliest
reference to a trial of any kind in all European literature.

Our fourth category of the modes of blood-vengeance is intended to
comprise all the methods of punishing homicide which are characteristic
of fully developed social organisms, whether in ancient or in modern
times. Homicide, which was originally conceived as an outrage affecting
only a family or clan, may come to be regarded as a crime against the
body politic, as an insult to the majesty of the State, its laws, its
gods, or its governors. Indeed, this latter conception usually becomes
so vigorous that it obscures and ultimately extinguishes the former,
at least in so far as that former conception concerns the claims of the
relatives of the victim. In early English law the word _murdrum_[5]
denoted a fine payable to the king if the murderer was not produced.
In feudalism, the lord claimed a _portion_ of the payment made by the
relatives of the slayer. This was the _honour-price_, an atonement for
the insult caused by a ‘breach of the peace.’ In historical[6] Athens
wergeld was forbidden, but the property of a convicted murderer who went
into perpetual exile was confiscated to the State. In ancient Israel
wergeld was abolished when murder was conceived as a ‘sin’ against the
God of the State, when it was believed that blood polluted the land.[7]
In Greece, too, we hope to show that wergeld was abolished in the first
instance by the religion of Apollo, and that the evolution of the
State, if it did not assist in its abolition, at least ensured that the
abolition should be permanent. Once murder becomes a sin against the
gods, or a crime against the State, the day of private vengeance has
passed: that of State trial, State imprisonment, State execution takes
its place. The relatives may still assist, they may even be compelled to
assist, in the punishment of homicide, but they have lost the right to
material compensation.

We will now give a few illustrations of the actual operation of these
modes of blood-vengeance. As the fourth or last-mentioned mode is
found in all modern States, we need not here illustrate its operation,
especially as we shall have to describe, at a later stage, the treatment
of homicide in historical Athens.

As an example of the practice of unrestricted vendetta, we may cite
the case of the Montenegrins.[8] This little people, up to quite
recent years, practised a collective and hereditary vendetta, which
continued from generation to generation, until the number of victims
on both sides was equal, or until a blood-price of ten sequins was
accepted by the feud-weary relatives of the original victim. Again, in
Sardinia,[9] until the close of the eighteenth century, a collective
hereditary feud followed a single act of murder, and hundreds of
lives were lost in a single year. In Corsica,[10] in the eighteenth
century, the vendetta-system caused the loss of a thousand lives
each year: whole villages were depopulated: houses became fortresses
where armed men lay in wait, hungry for vengeance, while the women
tilled the fields. A similar barbarous blood-thirst was prevalent in
Sicily,[11] in Calabria,[11] and in Albania,[12] up to quite recent
times. The establishment of an improved system of government and the
operation of disciplinary penalties have fortunately checked and must
ultimately abolish so hideous a mode of vengeance. These peoples of
the Mediterranean area are probably, as Ridgeway holds,[13] the racial
descendants of the old Pelagasian race. For this, and for other reasons,
there is a tendency to assume that the Pelasgians followed this system of
blood-vendetta. But we hope to show that this view is probably incorrect,
and that it is much more applicable to the Greece of post-Achaean days,
that is, from 1000 B.C. to 750 B.C. than to the Greece of Achaean and
pre-Achaean times.

As an illustration of the second mode of vengeance, we may perhaps
cite the Serbians of recent times who adopted a restricted form of
vendetta and who often allowed murder to remain unpunished.[14] The
restricted system seems to have existed amongst the Araucanians[15] of
South America, and amongst the Jivaros Indians,[16] but only when the
identity of the murderer could be established. In this latter case we
find the alternative operation of a more civilised with a more barbarous
form of vengeance. But we must not assume that these forms coexist as
alternatives everywhere. A French authority holds[17] that the essential
motive of collective punishment was the production or identification of
the murderer. ‘So long,’ he says,[17] ‘as the murderer is unknown, so
long is the responsibility collective and diffused.’ We cannot accept
this statement as an explanation of the origin of unrestricted vendetta.
We admit that collective penalties of a minor kind would form a strong
inducement for the discovery of the criminal. It was for this reason
perhaps that an Anglo-Saxon law[18] levied a fine on the whole ‘hundred’
if the murderer was not produced. But it is one thing to bring pressure
to bear on a district, whether by a fine, as in this case, or by an oath,
as in the instance mentioned in Deuteronomy[19]; it is quite another
thing to destroy a whole town or village if the murderer was unknown. We
shall see[20] that the Homeric Achaeans often waited long for vengeance,
and often allowed the homicide to go unpunished, rather than visit with
unjust punishment the innocent relatives of the slayer. In this system
there is no trace of collectivity. The relatives have not even to pay
a sum of money. The flight of the slayer is not indeed accepted as a
substitute for the normal penalty, which is death, but it postpones
indefinitely, if not for ever, a vengeance which the slayer alone can
suffer.

To illustrate the operation of the ‘tribal wergeld’ system, we naturally
turn, in the first place, to the Germans of pre-Christian days.
Tacitus says[21] of them: ‘It is an indispensable duty to adopt the
private enmities of a father or a relative ... these, however, are not
irreconcilable and perpetual. Even homicide is atoned for by a fixed
number of cattle and sheep and the whole House accepts the satisfaction,
to the benefit of the civic group.’ Tacitus is obviously astonished at
this system of compensation for homicide. The Romans, like the Germans,
were familiar with the organisation of the clan, and of the tribe, but
Roman law, as far back as we can trace it, did not permit wergeld. In
Rome,[22] from 450 B.C. onwards, the expiation of the insult which the
homicide offered to the State and its gods had driven from view, and had
therefore probably abolished, the material compensation of the clan.
The chief detail of interest which Tacitus gives us is the collective
acceptance of satisfaction by a whole House or Family. From other
sources, which we shall presently discuss, we may infer that the House
in this instance was a very large unit, including not merely the closer
kindred which traced descent to a common living (or lately deceased)
ancestor, but that wider group of kinsmen which is called the clan.

We note also, in Tacitus’ account, a reference to a fixed number of
cattle and sheep. Who was it that fixed the number? Who was it that paid?
To answer these questions we shall cite some details of Welsh wergeld
payments which have been admirably collected and explained by Mr. F.
Seebohm.[23]

In the Cymric codes, the normal wergeld was a payment of one hundred and
twenty cows, but the number varied according to the rank of the slain.
For the death of a chieftain the amount was one hundred and eighty cows:
for the death of a stranger, from thirty to sixty cows.[24] Over and
above the wergeld or _galanas_, there was payable an insult-price or
_saraad_, consisting of six cows. This amount was always paid first,
from the murderer’s own cattle. Within fourteen days of the murder, a
meeting of the slayer’s clan or wider kindred was convened, at which the
proportion of wergeld due from each family was determined. Usually the
murderer’s family paid forty cows, or one-third of the total wergeld.
Of this amount the murderer himself paid one-third, or about fourteen
cows; his father and mother paid one-third, and his brothers and
sisters one-third, the brothers paying twice as much as the sisters.
The remaining portion of the wergeld, namely, eighty cows, was paid
by the wider kindred. Relatives on the paternal side paid two-thirds,
those on the maternal side, one-third. As the clan comprised very often
a large number of people, the actual contribution of individual cousins
of the murderer would have been rather small. The murderer himself paid,
in _saraad_ and _galanas_, a total forfeit of twenty cows. But if the
murderer was poor, there was paid ‘spear-penny,’ which was one-ninth of
the wergeld, but was collected from male kinsmen on the paternal side.

It was not necessary that these payments should all be made at the
same time, or immediately. They were frequently made in fortnightly
instalments. The system of receiving wergeld seems to have been parallel.
It is probable that the cows paid by the murderer’s family went to the
family of the victim: those paid by first cousins went to first cousins:
those paid by paternal kindred went to paternal kindred: all being
distributed in the last resort to individuals, if the clans involved
had developed the principle of individual ownership at that particular
period of time. It is clear from the Cymric codes that individual
ownership was assumed as universally prevalent. But it is certain that
such a condition is not a characteristic of all tribal communities. In
the Salic law, which operated amongst the Germans from about A.D. 500
onwards, a distinction was made between the inheritance of ‘wergeld’
and that of the ‘allod’ or family-domain.[25] While the latter could
only be inherited by a family group which did not extend beyond second
cousins, a group which in Wales was called a ‘gwely,’ the wergeld was
inherited by all persons who could trace any kind of direct descent,
however remote, from a common ancestor of the original receivers of the
wergeld. This law seems to us to reflect an ancient system of communistic
ownership in movable property amongst the Germans. Indeed we may infer
the existence of such a system from the account which Caesar[26] gives of
the pre-Christian Germans. Even in the time of Tacitus the arable land of
the Germans had not yet become private property.[27]

It is in this common control, or common ownership, of wergeld that we
may find the explanation of the absence of wergeld-payments for homicide
within the clan. Seebohm, speaking of the Welsh system, says[28]: ‘A
murder within this wider kindred was regarded as a family matter....
There was no blood-fine or _galanas_ within the kindred.’ We shall find
at least one illustration of this important principle in the _Iliad_
of Homer.[29] It is not a complete explanation of the principle to
assert, as Fustel de Coulanges would assert,[30] that the kin-slayer had
offended his domestic gods and that no payment could permit the continued
presence of the murderer at the ancestral hearth fire in which the life
of a kinsman had been violently submerged. In the phratry different
clans had a common worship, and the murderer who paid wergeld joined in
that worship. We agree with Coulanges that the attitude of the domestic
gods towards kin-slaying differed from that of the phratry-gods towards
ordinary homicide. But why? Because primitive man creates gods in his own
image and endows them with his own emotions. It is with man, not with
gods, that the ultimate explanation lies. The real explanation of the
principle is to be found, we think, in a tradition ultimately resting on
the common ownership of property.

Accepting this principle, we can understand more easily the punishment
of kin-murder in tribal society. There are only three alternative
penalties to wergeld: exile, bondage (or servitude) and death. It is
natural to assume, and it has been rightly maintained,[31] that death
was a loathsome penalty in days when relatives alone could avenge. It
was therefore rarely, if ever, exacted. Bondage or servitude also,
though sometimes found as a punishment for homicide,[32] would naturally
be avoided as a sequel to kin-murder. There remains only the option
of exile. Like Cain, the slayer of his brother, the kin-murderer must
wander over the wide earth.[33] Expelled from his clan, his home, his
property and his gods, he goes forth to slavery or to death in other
lands. As a French writer puts it, ‘Alone, he has arrayed against him the
universe.’[34]

When homicide occurred between members of different clans, death was
never inflicted on the slayer, except in the last resort. It was,
perhaps, in order to avoid this fate, that the slayer sometimes fled
into exile. But it is doubtful if his flight cancelled any part of the
wergeld except his own individual share, or the ‘spear-penny’ which he
was expected to collect, if he was poor. It is certain however that the
life of the slayer was never exposed to danger from the relatives of the
victim so long as he remained in exile. That there were variations in the
matter of accepting exile as part-payment of wergeld will be obvious from
the following facts which we cite also as illustrations of the survival
of wergeld in a modified form under feudal or ecclesiastical rule.

In the _Canones Wallici_, a code of laws which operated in Wales in the
seventh century A.D., we find[35] that the slayer pays half the total
wergeld, and his relatives pay half. The wergeld at this time consisted
of three male slaves and three female slaves: if the slayer went into
exile his half was cancelled, but his relatives had still to pay their
half, or to follow him into exile. In the Burgundian homicide-laws of
the fifth century A.D. we find[36] that the penalty for the murder of a
freeman was death. The older wergeld penalty, which was now abolished
for murder, was however retained in a certain form for minor degrees of
guilt. Thus, for manslaughter, we have a list of blood-ransoms arranged
according to the rank of the victim: for the unintentional slaying of a
noble, the penalty was a payment of 300 solidi: for that of an ordinary
man, 200 solidi, and so on. For slaying a person in self-defence, the
penalty was reduced to one-half in each case. Amongst the laws of the
early Norman Kings of England we find[37] the following, attributed
to Henry I, in which a group of neighbours known as guild-brethren
(_congildones_) are compelled to supplement the payments of the kindred.
‘If anyone commit homicide of this kind, let his relatives pay as
much wergeld as they would have received if he (the slayer) had been
killed: if the slayer have relatives on the father’s side and not on
the mother’s, they pay as much as they would have received, that is,
two-thirds the wergeld: if the slayer has only maternal relatives, they
pay one-third the wergeld, the _congildones_ one-third, and himself
one-third: if he has no maternal relatives, the _congildones_ pay half,
and himself half.’ The manner in which feudalism gradually substituted
the conception of murder as an insult to a king or to a lord for the
older conception of it as an injury to the clan is clearly seen in the
following law[38] attributed to King Henry I: ‘If the slain man has no
kindred ... half shall be paid to the king, and half to the _congildones_
(of the victim).’ In one portion of the Salic law we read[39] that if
anyone slays a kinsman and goes into exile, his goods are confiscated to
the royal treasury. Feudalism has thus exacted a new penalty which the
clan-regime did not exact.

On the other hand we find a diminution in the collective punishment which
tribal wergeld carried with it, in the law of King Edmund (A.D. 940-946)
which may thus be rendered in modern English[40]: ‘If anyone henceforth
slay any man, (I will) that he himself bear the feud unless with the aid
of his friends he compensate it with full wergeld within twelve months.
But if they will not pay, I will that all the kindred be free from the
feud except the murderer, provided they do not afterwards give him food
and protection.’ In such laws as these we catch a glimpse of a system of
blood-vengeance which once prevailed amongst tribal peoples, but which
soon became a mere echo, a phantom shadow of its former self, in the
march of mightier movements, in the onward course of civilisation.

We have wandered far afield in the search for definite details of
the wergeld system, as we shall look in vain for such details in the
ancient literature of Greece, though we can have no doubt that the
system prevailed in Greece for many centuries. It is true that in the
laws of Gortyn we find[41] a classification of money-payments which
were exacted for adultery and seduction at a period which no authority
regards as earlier than the seventh century B.C., and which is generally
believed[42] to be the sixth or fourth century B.C. These payments
varied according to the rank of the offender and of the injured party:
and also according to the particular circumstances of the offence.[43]
But at the time of the Gortyn laws, Crete had passed out of the stage
in which murder was materially compensated. Hence these laws contain no
reference to the wergeld system. We must therefore be content to apply
to the earliest societies of Greek lands the general principles of the
payment of wergeld which we find operative in other tribal countries. We
have in the text of Homer unmistakable evidence[44] for the payment of
some form of wergeld. The only question that arises is: was this payment
a mere sordid termination of a sanguinary feud, such as characterised
the Montenegrins up to recent years, or was it a genuine tribal wergeld?
Before attempting to answer this question, it will be necessary to
examine briefly the nature of the societies which existed in Homeric
Greece.


SECTION II

Fortunately, as a result of recent archaeological exploration we are now
entitled to assume, what the ancient Greeks so naturally believed, that
the _Iliad_ and the _Odyssey_, the pioneer epics of European literature,
are valuable historical documents for the period which preceded and
followed the Trojan war. For our present purpose it does not very much
matter whether the poems were composed by one great poet or by a number
of rhapsodists, whether they were composed in Greece or in Asia Minor.
The important thing is that they refer to actual places and events, to
men and women who really lived and died. Just as Seebohm accepts the
poem _Beowulf_ as sole evidence for early Scandinavian tribal custom,
even though he describes[45] the poem as an ‘Anglian or Northumbrian
recension of a story founded on Scandinavian tradition and designed for
recital at some eighth-century royal court,’ so we see in the _Iliad_ and
the _Odyssey_ a genuine historical picture of Greece under the Achaean
domination, even though these poems were not the work of contemporary
hands, and contain certain passages and verses[46] which are clearly of
later origin than that of the poems as a whole. It is only necessary
for us here to refer to two recent works[47] of Dr. Leaf which furnish
a cogent justification for this assumption. Professor Ridgeway, too,
who has done so much to remove the veil of obscurity which has hung for
so long over early Greece, has never wavered in his belief[48] in the
historicity of Homer. We should indeed prefer to be wrong with Leaf and
Ridgeway rather than to be right with such critics as Gilbert Murray[49]
and Miss Harrison,[50] who see in the Homeric poems the culmination of
centuries of literary work, which took final form and shape in the Athens
of Solon and Peisistratus, in the atmosphere of the Persian rather than
the Trojan war.

The _Iliad_ and the _Odyssey_, however, if they are to be correctly
interpreted, must be studied in the light of sociological analogy
and archaeological research. Everyone is now familiar with the
differentiation which the learning and genius of Ridgeway first defined
in the population of early Greece, and with the distinction which he has
indicated between the _Achaeans_ and the _Pelasgians_.[51] In Homer,
the peoples of Greece are called _Achaeans_: but Ridgeway holds that
the Achaeans were not Greeks: that they were not even members of any
Mediterranean race; that they were Celts[52] from Central Europe who
descended slowly into Greece, who conquered the inhabitants by virtue of
superiority in the arts and weapons of war, who settled and intermarried
with native royal families, and who, in the course of two hundred years,
had become assimilated to the natives in language and culture, until
they lost all consciousness of difference.[53] Homer, the poet of the
Achaeans, called the Greek-Achaean host, the mixed army of Pelasgians
and Achaeans, by a name which belonged only to the Celtic kings in
whose courts he sang his songs of praise. The Celtic Achaeans have lost
their language but retained their name. The Pelasgians, according to
Ridgeway,[54] spoke in the time of Homer an Aryan tongue so well that
even their conquerors came to speak it and forgot their own. Yet they
were not, in origin, an Aryan race! On this point we find it difficult
to agree with Ridgeway, though we admire the scientific reasoning and
the profound learning which support his theory. The precise nature of
the social organisations of early Greece, Ridgeway does not attempt
to decide—at least in his ‘Early Age of Greece’: but we infer from an
article which he has written on Homeric land-tenure[55] that he believed,
as does Mr. H. Seebohm,[56] that both Achaeans and Pelasgians were tribal
peoples.

Some of the difficulties presented by Ridgeway’s reasoning are removed,
in our opinion, by the more recent theories of Dr. Leaf. Before the
advent of the Achaeans to Greece about 1400 B.C.,[57] there already
existed in Greece, according to Leaf, two social and racial strata:
(1) a dominant non-Aryan[58] caste who came originally from Crete, and
who may be called Minoans: (2) a primitive neolithic agricultural
Aryan people who spoke Greek,[59] who were, in fact, the nucleus of
the Greek race, and who had imposed their speech upon their non-Aryan
masters. The Achaeans, in Leaf’s view, came as a wave or series of waves
in the perpetual tide of invasion from the north.[60] Settling first
in Epirus,[61] they pressed gradually southwards, subdued the Minyans
(or Minoans) of Iolcos,[62] and the Pelasgians of central Greece,[63]
crossed later to the Peloponnese, and having conquered Elis, Laconia
and Argolis, established themselves in all the strategic positions of
the peninsula.[64] They were not necessarily, in Leaf’s opinion, of
different racial origin from the Pelasgians[65]: they may, in fact, have
been remotely related to them. But the Achaean outlook and temperament
were very different from those of the Pelasgian folk. The former were
military freebooters; piratical adventurers,[66] bound together by that
rigid obedience to a single commander which was an essential condition
of their survival and success. The latter were tillers of the soil,
accustomed to political serfdom,[67] paying such dues as their masters
exacted, following them, on occasion, to battle and to death. One point
of difference which Leaf mentions must be here especially emphasised,
as it is of vital importance for our theory of Homeric blood-vengeance.
The Achaeans, Leaf holds,[68] had no tribal or ‘kindred’ organisations,
and were merely soldiers of a common army. The Pelasgians,[69] however,
were for the most part organised on the model of tribal communities.
Speaking of the Achaeans, he says[70]: ‘All the rites and taboos of the
primitive Family-system have disappeared and obligation only attaches
to the natural kinship of close blood-relationship.... This is what we
should expect in a race of military adventurers. Family rites do not
tend to military efficiency: the efficient soldier must break away from
local ties. In so doing he takes a long step away from the foundations
of primitive society and religion.’ Thus Leaf conceives the society of
Homeric Greece as composed of two elements: (1) a military autocracy,
ruling like the Spartans in Laconia, a small exclusive caste held
together by the consciousness of a common origin and a common purpose and
also by the danger of hostility from without: (2) a tribal agricultural
subject-folk who lived their primitive lives in rural areas, in villages,
in unimportant towns, and even in cities within view of the Achaean
garrison. Now this conception differs fundamentally from the traditional
ideas of Homeric society, and in particular from the conception of the
Achaeans as a tribal people, which we have associated with Ridgeway
and H. Seebohm. We believe that an attempt to decide this question is
necessary for the elucidation of many Homeric problems, such as that of
blood-vengeance or of land-tenure. We shall adduce evidence, in our study
of Homeric blood-vengeance, which will serve as a confirmation of Leaf’s
hypothesis. At present we will confine ourselves to some more general
arguments which can be regarded as supplementary to the evidence which
Leaf himself puts forward.

Ridgeway, in discussing[71] the mode of land-tenure in Homeric Greece,
seeks to prove that the Homeric poems reveal an evolution in the
private ownership of land, beginning with a stage in which, as in the
_Iliad_, land is held in common by all tribesmen except the king or
chief whose _temenos_ is private and personal and probably hereditary,
and progressing to a stage in which, as in the _Odyssey_, ‘allotments’
among tribesmen tend to accumulate and to become more and more a
family inheritance within the tribe, without attaining to the stage of
absolutely private ownership which we find in the time of Hesiod. Such
an evolution is, of course, a characteristic feature of settled tribal
existence. Sir Henry Maine, in his interesting analysis[72] of the
origin of private property in land, distinguishes three stages of its
growth. In the first stage, there is communal ownership, both of land and
harvest, such as is still found among some Highland clans of Scotland:
the food-supplies of individuals are doled out, sometimes daily, by the
chiefs of the clans.[73] The periodical distribution of the ‘harvest,’
such as was made by the elders of tribal Slavonic subjects in the once
mighty Austrian and Turkish Empires, marks a slight modification of
this system, which does not, however, affect the tenure of land.[74]
‘In the Russian villages, however,’ says Maine,[75] ‘the substance of
the property ceases to be looked upon as indivisible, and separate
proprietary claims are allowed freely to grow up.... After the expiration
of a given, but not in all cases of the same, period, separate ownerships
are extinguished, the land of the village is thrown into a mass: and
then it is redistributed among the families composing the community,
according to their number.’ The third stage finds an illustration in
India, where, as Maine says,[76] ‘not only is there no indivisibility
of the common fund, but separate proprietorship in parts of it may be
indefinitely prolonged and may branch out into any number of derivative
ownerships, the _de facto_ partition of the stock being, however, checked
by inveterate usage and by the rule against the admission of strangers
without the consent of the brotherhood.’ Though neither Maine nor
Ridgeway mentions the analogy, we think we can trace some such evolution
in the old German tribes as described by Caesar and by Tacitus. Caesar
tells us[77] that here ‘no one has a fixed portion of land, his own
peculiar property, but the magistrates and chiefs allot every year to
_tribes and clans_ as much land as, and in whatever place, they think
proper, and they oblige them to remove the succeeding year.’ Tacitus,
however, says[78] that ‘the lands are occupied by villages, in groups, in
allotments proportioned to the number of cultivators, and are presently
parcelled out among _individuals_ according to rank and condition: the
arable lands are annually changed.’

Such a theory of evolution in landed property within the tribe may,
however, be complicated by the coexistence, in the same district, of
tribal groups and of a dominant ‘feudal’ caste. Maine points out,[79]
in reference to Russian village-communities, that ‘these villages are
always in theory the patrimony of some noble proprietor, and the peasants
have within historical times been converted into the predial and, to a
great extent, into the personal serfs, of the seignior. But the pressure
of this superior ownership has never crushed the ancient organisation
of the village.’ Now if we adopt the hypothesis of two distinct strata
in the Homeric society, namely, of a dominant quasi-feudal Achaean
caste, and of a tribal Pelasgian subject-folk, we shall be justified
in assuming that some such ‘superior ownership’ coexisted with tribal
ownership in the world of the Homeric poems. We shall expect to find
a predominance of private ownership on the one hand, and a trace or
‘reminiscence’ of communal ownership on the other, in the verses of a
poet who reflected in the main the atmosphere of the Achaean lords, but
also, incidentally and fortuitously, that of the subject people. We
must, then, consult the text of Homer if we hope to decide whether the
Achaeans were quasi-feudal adventurers who ruled over the Pelasgians,
without disturbing or destroying their normal tribal life: or whether
the Achaeans, themselves a tribal nomadic people, adopted, by a social
fusion, the tribal ownership which existed amongst their subjects, the
chiefs alone possessing ‘private land,’ the others, common land. As the
Homeric references to land-tenure are rare and obscure, it is obvious
that the solution of the problem of Homeric land-ownership depends
entirely on the answer to this wider and more important question.

In _Iliad_ xii. 422-426 Homer makes use of a simile derived from
a current mode of tenure of arable land, in order to describe the
fierceness of the conflict between the Argives and the Lycians. ‘As, in
a common field, two men make quarrel over boundaries, with measures in
their hands, and strive for equal rights, even inch by inch, so, too,
were they (the Argives and the Lycians) by (the brief space of) the
battlements divided.’ This passage proves beyond question that the poet
and his hearers were familiar with a certain degree of communism in
the use of arable land. Whether the reference is to a social condition
in which, as in the German tribes at the time of Tacitus, the arable
land was redistributed annually to individuals, or whether the land
was redistributed after long intervals of undisturbed enjoyment, as
was the custom in certain Russian villages, it is impossible, as it is
unnecessary, to decide. The really important point which we wish to
emphasise is that there is no evidence that the quarrelsome tillers of
the soil were Achaeans. This passage does not prove that the Achaeans
lived in clans and tribes and possessed their lands in communal fashion.
It merely proves that they were familiar with the existence of such a
mode of possession. Incidentally, also, it proves how strong and how
passionate, even in tribal rustic folk, the instinct begotten of even
temporary private ownership may be. Yet this is the principal text of
Homer upon which has been based the theory of the tribal nature of
Homeric society!

In _Odyssey_ vi. 6-10 we are told how Nausithous, the Phaeacian, brought
his people to Scheria, ‘and drew a wall around the town and builded
houses, and made temples for the gods, and meted out the fields.’ Here
we may observe that elaborate ceremonial which, as Fustel de Coulanges
points out,[80] was characteristic of the foundation of cities or of
settlements in Ancient Greece and Rome. The distribution of land was
an essential condition of agricultural existence for tribes which had
already developed a certain degree of private ownership. But this
passage merely proves that groups of people were known to change their
habitations.

In _Iliad_ vi. 190-195 we learn that a king of Lycia gave to Bellerophon,
as a dowry for his wife, half his valuables (τιμή), and the Lycians
gave him a domain (τέμενος) superior to that of others. Ridgeway and H.
Seebohm maintain that the only land which is held in private ownership,
in the _Iliad_, is the domain of kings and princes. In this passage we
admit the probable operation of tribal ownership, but we must point out
that the Lycians were not Achaeans. A more relevant citation is _Iliad_
ix. 574-84, a passage in which we are told that the Elders and Priests
of the Aetolians offered a choice of their richest lands as a ‘domain’
to Meleager. H. Seebohm holds[81] that it is improbable that the richest
lands were at the time unoccupied and that such an offer therefore proves
the existence of a communal land-tenure which would admit of such a
rapid partition and consequent readjustment. Again, we admit that tribal
ownership may be inferred from this passage, but we deny that the donors
of the domain were necessarily members of the Achaean caste. It is true
that the Achaeans ruled over Aetolia, but there still survived many
rich Pelasgian tribes. Even if we knew that the donors were Achaeans,
it would not be necessary to conclude that the Achaeans lived in tribal
groups, for the partition and readjustment might have been equally simple
for rich quasi-feudal owners acting in unison.

In _Iliad_ ix. 147-155 Agamemnon, the Achaean war-chief, says that he
will give to Achilles, as a dowry with his daughter, ‘seven cities,
around Pylos, having men abounding in flocks who will worship him with
gifts as a god and obey him.’ Those who conceive the Achaean heroes as
tribal chieftains will find it very difficult to explain how a chief can
thus wantonly confiscate the territory of his allies. Pylos was in the
‘kingdom’ of Nestor, a Minoan ally of the Achaeans. No confederation of
tribal chiefs engaged in a common war could survive such a confiscation.
But the offer of Agamemnon becomes intelligible enough if we regard him
as the leader of a dominant military power, or as the feudal over-lord
who possessed by right of office a ‘superior ownership’ of all the lands
of Greece.

In _Odyssey_ iv. 171-177 Menelaus says that he would have given to
Odysseus, had he been there on his return from Troy, a whole ‘city to
dwell in,’ and that he would have built for him a house, and brought him
from Ithaca, together with all his wealth, his son and all his people,
‘making one city desolate, of those that lay around, in his domain.’ H.
Seebohm finds it difficult to understand this passage in the light of his
tribal theory of the Achaeans. It is, he says,[82] unusual, and merely
shows the despotism to which a tribal chief frequently attained. But we
prefer to see in Menelaus the typical Achaean over-lord, who by virtue
of his kinship with Agamemnon, and of his own feudal and military power,
tramples with impunity upon a whole city and moves a whole people from
place to place, not as a chief would lead his tribe, but as a medieval
baron might move his _villeins_ from one part of his territory to another.

In the realm of Odysseus one seeks in vain for cogent evidence of
tribal conditions. The shameless conduct of the suitors of Penelope,
in devouring the substance of the absent Odysseus, and in plotting
the assassination of his son and heir,[83] as also the cruel
hyper-vengeance which Odysseus with impunity wreaked upon them, seem
to us more suggestive of feudalism and autocracy than of genuine
tribalism. In tribal communities an immense importance attaches to
questions of marriage and inheritance. The voice of the ‘folk-moot,’
of the clan-gathering, can and must be heard. It is true that in the
_Odyssey_[84] the disguised Odysseus, in questioning his son as to why he
had not driven the suitors from his house, asks significantly: ‘Do the
people hate thee?’ But it is equally true that in the domestic drama of
the realm of Odysseus the rank and file of the people are ignored. For
our part we feel that we move in that atmosphere of autocratic militarism
which, in ancient Thessaly or Macedonia, and in medieval Europe, exalts
the dagger of the assassin and the intrigue of the paramour.

In _Odyssey_ xiv. 208 we are told that when a certain rich man, named
Castor, died, his sons divided up and cast lots for his property. This
procedure would be perfectly normal in modern society if the owner died
intestate and the property was not entailed. We hear nothing in this
narration of any clan-council having determined the right of succession,
as would ordinarily occur in tribal conditions.

In _Odyssey_ xix. 294 it is said that the wealth which Odysseus has
amassed would suffice for his posterity even unto the tenth generation.
The selection of the number _ten_ in this passage seems to us to indicate
a possible reference to tribal life. F. Seebohm, speaking of medieval
Welsh tribes, lays stress on the length of time which had to elapse
before a ‘stranger’ could become a tribesman, pointing out[85] that
even the great-grandson of a stranger could not be a tribesman, though
he could be recognised as the founder of an embryonic clan, whereas a
semi-servile stranger’s descendants could not attain to the rank of
tribesmen until the ninth generation had passed away. Hence the saying
that a man’s wealth would suffice for ten generations could easily, in
tribal language, have become a proverb. It would simply mean that a man’s
posterity would never be in want, for after nine generations any man’s
descendants could have formed a tribal organisation and possessed tribal
wealth of their own. But must we conclude from this that Odysseus was
a tribesman? No conclusion could be less cogent. It is true that the
Achaeans, at the time of the Trojan war, were long enough settled in
the country to have produced the nucleus of clans and tribes, for they
had ruled over Greece for two hundred years. Thus the Achaean Melampus,
a contemporary of Nestor and Atreus, founded a family in Argos, the
development of which may thus be traced in Homer[86]:

               { Antiphates—   Oicles——Amphiaraus—      { Alcmaeon
    Melampus—> {                                        { Amphilochus.
               { Mantius   — { Polypheides—Theoclymenus.
               {             { Cleitus.

Here we find kinship extending to second and third cousins. Such kinship
exists everywhere in the world to-day, but it clearly does not constitute
a clan or a tribe. When, therefore, in Homer,[87] Theoclymenus is said to
have killed a man who is described as ἔμφυλος in relation to his slayer,
we must not suppose that the deceased was a tribesman. The word ἔμφυλος
should be translated as kinsman,[88] not tribesman. Several instances
may be found in Homer of tribal phrases and expressions applied in
non-tribal contexts. Thus the word γένος which ordinarily means ‘clan’
is used in Homer to denote a family in the modern sense,[89] or to mean
‘blood-descent,’ and kinship.[90] Rarely or never does it carry its
proper meaning. If the social organisation of the Achaeans had been of
a tribal character, surely the Homeric use of the word γένος would have
been different from what it actually is. Leaf calls attention[91] to the
very rare occasions on which Homer refers to such groups as the clan,
the phratry, and the tribe. Nestor says to Achilles that ‘the lover of
domestic strife is a man without hearth or law or phratry,’[92] and the
same Nestor urges Agamemnon to divide his fighting forces ‘by tribes
and phratries,’[93] but these solitary references no more compel us to
regard Achilles and Agamemnon as tribal chiefs than the tribal proverb
concerning the tenth generation compels us to regard Odysseus as a tribal
patriarch. Such references are rather, as Leaf says,[91] ‘reminiscences,’
reflections, whether in the mind of a Minoan or of an Achaean, of
conditions which prevailed universally amongst the subject Pelasgian
peoples.

We may then confidently conclude that the evidence of the Homeric
poems is much more consistent with the theory that the Achaeans were a
quasi-feudal military caste than with the theory which conceives them as
tribal nobles. We may think of the Achaeans, in their relation to the
Pelasgians, very much as we should think of the soldiers of the ancient
Roman Empire quartered in a province.[94] When the Burgundians came to
France about A.D. 500 they were regarded,[94] by a polite fiction, as
guests, and were presented with _hospitalitas_, consisting of two-thirds
of the land and one-third of the slaves! When the Achaeans conquered
Greece, they lived, indeed, in garrison-towns and sought to maintain
a splendid isolation in their lofty fortresses, but they took unto
themselves the richest lands and the fattest cattle and sheep, leaving
the Pelasgians to till the soil and to squabble about boundaries. But
when after two or three hundred years the Achaeans met a somewhat similar
fate to that which they had meted out to Greece and to Troy, the tribal
nobility of the primitive Pelasgians once more asserted its ancient
privileges.


FOOTNOTES

[1] _Infra_, p. 4 f.

[2] See _infra_, pp. 6-11.

[3] _Numbers_ xxxv.

[4] _Il._ xviii. 500 ff.

[5] See Stubbs, _Select Charters_, p. 201.

[6] 621 B.C. onwards.

[7] See _Numbers_ xxxv.

[8] See Récluse, _Universal Geography_, vol. i. p. 181 ff.

[9] _Ib._ pp. 346-7.

[10] See Récluse, _op. cit._, vol. i. p. 366.

[11] _Ib._ p. 321 ff.

[12] _Ib._ pp. 121-122.

[13] _Early Age of Greece_, p. 277.

[14] Récluse, _op. cit._ pp. 175-6.

[15] _Ib._ vol. xviii. p. 442.

[16] _Ib._ p. 246.

[17] See Glotz, _La Solidarité de la Famille_, p. 213.

[18] See Glotz, _loc. cit._

[19] _Deut._ xxi. 1-8.

[20] _Infra_, pp. 64-74.

[21] _Germania_, chap. xxi.

[22] See article _s.v._ ‘Homicidium’ in Ramsay’s _Dict. Rom. Ant._ p. 348
ff.

[23] See _Tribal Custom in Anglo-Saxon Law_, pp. 30-55.

[24] _Op. cit._ pp. 43 ff.

[25] F. Seebohm, _op. cit._ pp. 150 ff., and Maine, _Ancient Law_, p. 233.

[26] _Bell. Gall._ vi. 21.

[27] _Germania_, chap. xxvi.

[28] _Op. cit._ p. 55.

[29] _Il._ ii. 662 ff.; _infra_, p. 47 ff.

[30] See _Ancient City_ (trans.), p. 125.

[31] Seebohm, _op. cit._ p. 55; Glotz, _op. cit._ p. 34.

[32] See _infra_, p. 44 ff.

[33] _Genesis_ iv. 11-16.

[34] Glotz, _op. cit._ p. 45.

[35] Seebohm, _op. cit._ p. 109.

[36] Seebohm, _op. cit._ p. 123

[37] _Ib._ p. 323.

[38] _Loc. cit._

[39] _Op. cit._ p. 164.

[40] _Ib._ p. 356.

[41] See Dareste-Reinach, _I.J.G._ tome i. pp. 352-493.

[42] See Caillemer, in Daremberg and Saglio’s _Dictionnaire_, p. 1630.

[43] See also Glotz, _op. cit._ pp. 383-5.

[44] See _infra_, p. 31 ff.

[45] _Op. cit._ pp. 56-72.

[46] See Leaf, _Homer and History_, pp. 83-86, 98 ff.

[47] See his _Homer and History_ and _Troy_.

[48] See _Early Age of Greece_, p. 635.

[49] See _Rise of the Greek Epic_, _passim_.

[50] See _Themis_, pp. 335, 445 ff.

[51] _Op. cit._ pp. 90-337.

[52] _Ib._ pp. 339, 355, 370, 406.

[53] _Ib._ p. 95.

[54] _Ib._ pp. 678 ff.

[55] See _J.H.S._ vol. vi. pp. 319 ff.

[56] See _Greek Tribal Society_.

[57] See _Homer and History_, p. 41; also Bury’s article, _Quarterly
Review_, July 1916.

[58] Leaf, _op. cit._ p. 37.

[59] Leaf, _op. cit._ p. 37.

[60] _Ib._ pp. 41, 49.

[61] _Ib._ pp. 49-50.

[62] P. 51.

[63] P. 222.

[64] Pp. 50-52.

[65] Pp. 37, 247.

[66] P. 252.

[67] Pp. 37, 247.

[68] Pp. 251-252.

[69] Pp. 250, 251, 258.

[70] Pp. 251-252.

[71] _J.H.S._ vol. vi. pp. 319 ff.

[72] See _Ancient Law_, pp. 214 ff.

[73] _Op. cit._ p. 223.

[74] _Ancient Law_, p. 223.

[75] _Ib._ p. 221.

[76] _Ib._ p. 223.

[77] _Bell. Gall._ vi. 21.

[78] _Germania_, chap. xxvi. adopting emendation _vicis_.

[79] _Op. cit._ p. 221.

[80] _Ancient City_ (trans.), p. 57.

[81] _Op. cit._ pp. 103, 118.

[82] _Op. cit._ p. 115.

[83] _Od._ xvi. 369-385.

[84] xvi. 95 ff.

[85] _Op. cit._ p. 51.

[86] _Od._ xv.

[87] _Od._ xv. 273 ff.

[88] So Butcher and Lang, trans. _ad loc._

[89] _Od._ viii. 573.

[90] See _Il._ xiii. 354; _Od._ vi. 35, 209, xv. 533.

[91] _Op. cit._ p. 251 n.

[92] _Il._ ix. 63 ff.

[93] _Il._ ii. 362.

[94] F. Seebohm, _op. cit._ p. 122.




CHAPTER II

THE PELASGIAN SYSTEM

    Current views explained and criticised: author’s view:
    proofs from the text of Homer: question of a distinction
    between murder and manslaughter, and between justifiable and
    unjustifiable homicide: collectivity in vengeance.


The opinions which have hitherto prevailed among scholars in regard to
early Greek blood-vengeance are more or less unanimous. They seem to be
based on an assumption of homogeneity in the society depicted by Homer.
Expressed in terms of the modes of vengeance which we have described
in the preceding chapter, the customs of Homeric Greeks in regard to
homicide have been conceived as a confusion of modes I, II, and III—as
a mixture of restricted and unrestricted vendetta and wergeld. Thus,
Eichhoff[1] holds that in Homer murder is a ‘private’ affair, and that
the slayer must go into exile if the ‘money’ paid to the injured family
is not accepted. Bury[2] says: ‘According to early custom which we find
reflected in Homer, murder and manslaughter were not regarded as crimes
against the State, but concerned exclusively the family of the slain man,
which might either slay the slayer or accept compensation.’ Grote[3]
says: ‘That which the murderer in Homeric times had to dread was not
public prosecution and punishment, but the personal vengeance of the
kinsmen and friends of deceased. To escape from this danger he is obliged
to flee the country, unless he can prevail upon the incensed kinsmen to
accept of a valuable payment as satisfaction for their slain comrade.’
Jevons[4] says: ‘If the family of the murderer were not content to pay
the wergeld, the murderer generally found it expedient to flee into a far
country, for, if he remained he would assuredly be killed in revenge.’ In
a foot-note in Butcher and Lang’s translation of the _Odyssey_,[5] we
are told that ‘as a rule blood called for blood, and the manslayer had
to flee from the kindred who took up the feud.... It is superfluous to
remark that the “price” as an alternative to vengeance is a widespread
custom.’ Glotz[6] speaks of death, exile, wergeld, and slavery as
possible penalties everywhere. He seems to believe that there existed
in Homeric times that collective and hereditary vengeance which is so
characteristic of barbarous peoples, but for this view he has adduced no
evidence apart from post-Homeric legends. In an article in Daremberg and
Saglio’s _Dictionnaire des Antiquités Grecques et Romaines_,[7] we are
informed that ‘originally’ homicide is an offence only against the family
of the victim, and all the members of the ‘famille outragée’ have a right
and a duty of vengeance. To escape this vengeance the murderer has no
other resource but exile. His exile will exempt his kinsmen from the
reprisals to which they would otherwise be exposed.[8] As the murderer
will be most often supported and defended by his family, a war of
families will lay desolate a whole country: in course of time, and with
the softening of human character, the offended family will renounce its
vengeance, and enter into a bargain with the murderer and his family. He
will be permitted to return from exile, but, as a rule, only by payment
of ‘compensation.’ His relatives will furnish him with this payment
(ποινή), at once the price of the blood shed and the ransom of the
murderer’s life. The payment is vaguely defined at first, varying with
the importance and the wealth of families. For murder within the family
(γένος), there is no question of wergeld. A compromise is effected by
which the family waive their right to kill the murderer on condition that
he leaves the γένος—‘ils se bornent au bannissement du coupable, rompant
ainsi, par son expulsion, les liens qui le rattachaient au γένος.’[9]

All these critics appear to suggest that the early age of Greece presents
us with a more or less homogeneous but undeveloped and quasi-barbarous
race[10] which slowly and gradually evolves into something like
civilisation in the time of Dracon and Solon. Thus conceived, the
homicide-customs of Homer are very similar to those of the Montenegrins
of modern times, who have long lived in a condition of social chaos and
who accept, in atonement for homicide, a payment of money when there is
hardly anyone left to pay it!

Leaf, who in _Homer and History_[11] (1915) differentiates very clearly
between the Pelasgian and the Achaean elements in the societies of
Homeric Greece, points out that to the Achaeans ‘homicide is a local and
family affair, and brings no disability other than exile from home.’ A
wealthy and generous king can give opportunities of advancement beyond
all the hopes of a narrow family circle. To an ambitious Achaean (as
witness Patroclus,[12] Phoenix[13] and others[14]), exile in such
circumstances is not a real punishment. When Leaf observes, in regard
to the Achaeans, that ‘thus the most sacred of all taboos, the shedding
of kindred blood, loses its final sanction,’ he seems to hint at the
existence, in the Homeric society, of a non-Achaean attitude to homicide.
He does not however explain the precise nature or origin of this attitude.

Moreover, in _Homer and History_, Leaf does not suggest any solution of
an important problem to which he refers in previous works—the problems
presented by the reference to wergeld in the Homeric passage which
describes the Shield of Achilles.[15] In a note of his translation of
the _Iliad_ (1883), he said[16]: ‘The trial scene is one of the most
difficult and puzzling passages in Homer.... The whole passage is clearly
archaic, but the difficulty lies in the fact that no parallel, so far as
we know, is to be found in the procedure of any primitive races which
throws any light upon this passage.’ In his _Companion to the Iliad_
(1892) and in his latest edition of the _Iliad_ (1902), in a note on
the passage in question,[17] he put forward an hypothesis which seems
to suggest that he conceives the Homeric Greeks as quasi-barbarous
peoples. Having indicated the frequency of blood-for-blood retaliation
in the _Iliad_, he interprets the trial-scene as representing a stage in
the evolution of homicide customs from more primitive conditions. ‘It
seems absolutely necessary to assume an intermediate stage in which the
community asserted the right to say in every case whether the next of
kin should, for reasons of public policy, accept compensation, and the
missing link is apparently brought before us here.’

By assuming that the trial-scene represents, not a murder trial (which
few now maintain) nor yet a wergeld debt trial, _i.e._ an inquiry as
to whether wergeld has been paid or not, but a piece of novel homicide
legislation, Leaf thinks that ‘the scene gains enormously in importance.’
Postponing for a time[18] our criticism of this view, published thirteen
years before the date of _Homer and History_, and deferring the solution
which we shall offer of the difficulty, we proceed to state our own
theory of the homicide customs of Homer. This theory is based in the
first place on a distinction between an Achaean dominant caste and a
subject Pelasgian people; secondly, on the hypothesis which Leaf puts
forward as to the different character and mode of life of the Achaeans
and the Pelasgians—the former being conceived as a race of bellicose
military adventurers living in isolated groups; the latter, as an
agricultural subject-people, tillers of the soil, who preserved intact
their tribal organisations; thirdly, on the connexion existing between
the homicide customs of a people or caste and their temperament and
social organisation—a connexion which is established by a general study
of blood-vengeance amongst various peoples; and, finally, on a correct
interpretation of the text of Homer.

Our theory is as follows: there existed in Greece at the period of the
Achaean domination (1300-1100 B.C.) two fundamentally distinct social
strata, each having a distinct characteristic attitude to homicide, and
observing distinct modes of blood-vengeance. The two modes coexisted
side by side without affecting or modifying each other, but their
coexistence produced a slight confusion of thought and an absence of
clear discrimination in language in the Homeric poet (or poets) who were
in contact with the two social strata, and who were familiar with the two
modes of vengeance, but who almost ignored the one and exalted the other,
out of courtesy to the masters whose praises they sang. These two modes
of vengeance, which we will call respectively Achaean and Pelasgian,
may be thus described: (1) Amongst the Achaeans the normal penalty for
homicide is death. Their system is private vendetta, of a restricted
character, such as we have already described in our introductory chapter.
The vengeance is quite personal and individual, that is, the murderer
alone is liable to the blood feud, which is therefore neither collective
nor hereditary. Vengeance is a duty which devolves upon the dead man’s
sons or brothers, but we may include the possibility of support from
a kindred of limited extent[19]: a kindred which may be an embryonic
clan, but whose attitude to homicide is quite different from that which
normally characterises a clan. Wergeld is not accepted, even though it is
known to exist outside the caste: exile is not a recognised appeasement
or atonement, but is merely a flight from death, and the Achaean murderer
frequently takes refuge with a king or a wealthy man. We shall describe
this Achaean system more fully in a later chapter. (2) The Pelasgian mode
will be found to be that which we have described in the Introduction
as the ‘tribal wergeld’ mode, though it may have evolved from a more
barbarous mode before 1300 B.C. In this system there are three or
four recognised alternative penalties: (1) ‘wergeld,’ which is the
normal measure of vengeance or retribution, and which is so frequently
associated with tribalism; (2) exile, which involves a formal and solemn
expulsion from the ‘group,’ a serious penalty for anyone born and bred in
the atmosphere of tribal life and religion; (3) death, which is rarely
inflicted, but is a possible alternative if neither ‘wergeld’ nor exile
is accepted by the murderer or his clan; (4) we may add, with Glotz,[20]
though there is no definite Homeric evidence for its existence, the
option of slavery or servitude. This is not the slavery which is found in
later times in Home and in Greece, when there was a regular slave trade,
nor is it the temporary ‘slavery’ which is involved in being ‘kidnapped’
and held to ransom—a frequent occurrence in Homer; it is, however, akin
to this latter condition, inasmuch as it involves a state of bondage,
from which a murderer can be redeemed, not by the payment of such a price
as his ‘redeemer’ can be induced to pay, but by the payment of such
valuables as have been determined by long tradition—his quota of the
wergeld of the clan.


PROOFS FROM THE TEXT OF HOMER

In our introductory chapter we pointed out the connexion which exists
between the homicide customs of a people or caste and their temperamental
outlook and social organisation; we have quoted Seebohm’s views as to
the essentially tribal character of the wergeld-exile-death system; and,
therefore, anyone who accepts Leaf’s hypothesis as to the nature of
the Achaean and Pelasgian social strata will be prepared to admit that
our hypothesis as to Pelasgian blood-vengeance is logically _a priori_
probable. In a later chapter we shall seek further confirmation of our
theory by explaining the difference in the religious beliefs of the
Achaeans and the Pelasgians, and by indicating their different attitudes
to the judicial aspect of homicide. We now proceed to the crucial test of
our opinions—the evidence of the Homeric poems.

In Homer the word ποινή occurs very frequently. Glotz[21] thinks the
word is connected with the verb τίνειν (to pay). He says: ‘De vrai,
ποινή doit être rapproché de τίνω et des mots apparentés, τίνυμι, τιμάω,
τίσις, τιμή.’ Others[22] however hold that it is connected with the root
_pu_, found in Greek πῦρ, and Latin _purus_, _punire_, _poena_. The word
ἄποινα seems akin in origin to ποινή, but in Homer it is invariably used
of a ransom or gift of valuables.[23] We do not think that Glotz[24] has
quite succeeded in his attempt to prove the evolution of the word ποινή
from an earlier meaning of ‘blood-vengeance’ to a later one of pecuniary
satisfaction, at least within the limits of the Homeric poems. His
reasoning is very similar to that known as ‘squaring one’s premises to
one’s conclusions’: he is not aware of any distinction between Achaeans
and Pelasgians, and he finds the Homeric use of ποινή rather difficult
to explain. He must have been aware of the fact—one which we consider
of great importance—that in Homer the word ποινή nearly always means
‘punishment’ or ‘revenge’ rather than ‘compensation’ or ‘ransom’: he is
certainly aware that, while ποινή can mean a pecuniary satisfaction for
a material wrong or injury, and can mean the ‘ransom’ of a captive or of
a warrior’s dead body, nevertheless there are only two instances in all
Homer in which ποινή can be formally interpreted to mean wergeld. Thus he
says,[25] ‘On songe aux deux passages de l’Iliade où il est formellement
parlé de composition pour homicide. Ce sont le discours d’Ajax à Achille
au chant ix et la scène judiciaire figurée sur le bouclier d’Achille au
chant xviii.’ It is by a close examination of these two passages that
we hope to solve the difficulty connected with the Homeric ποινή. But,
first, let us say that the word ποινή is precisely the kind of word which
may easily possess a general as well as a special significance. The ideas
of ‘payment’ and ‘punishment’ may, in certain circumstances, coalesce:
and it is probably because Homer was subconsciously aware of the fusion
of ideas involved in the use of the word ποινή, that he employs another
word of kindred meaning, ἄποινα, to denote a payment in which the idea of
‘punishment’ is absent or obscured.

In Homer, the word ποινή is used to denote a variety of ideas ranging
from ‘punishment in general,’ such as death inflicted in vengeance, to
‘compensation for injury’: thus in _Iliad_ xvi. 398 Patroclus, having
slain many foemen in battle, is said to have thus exacted vengeance (or
payment) for many Greeks who had fallen:

    κτεῖνε μεταΐσσων, πολέων δ’ ἀπετίνυτο ποινήν.

There is no question of ‘payment of goods’ or ‘wergeld’; it is merely the
vengeance which a warrior inflicts upon his enemies. In _Iliad_ xxi. 28
Achilles chooses out twelve Trojan youths whom he afterwards burns on a
funeral pyre. His motive may have been to placate the shade of Patroclus,
by sending him ‘souls’ to be his slaves in Hades, or, less probably,
to gratify the desire of the shade for vengeance. The youths are spoken
of as ποινὴ Πατροκλοῖο: clearly they are not ‘goods or valuables,’ and
are neither ‘paid’ nor ‘received.’ The poet may have been conscious of
an undercurrent of meaning, if he had known of bondage or slavery as a
penalty for murder in the tribes. But the slaying of Patroclus was not
murder! The ποινή of Patroclus is not even ordinary blood-vengeance, it
is merely the retaliation of an indignant warrior.

Again, in _Odyssey_ xxiii. 312 Odysseus tells Penelope how he exacted
from the Cyclops punishment for the slaying of his companions,—ὡς
ἀπετίσατο ποινὴν ἰφθίμων ἑτάρων. The Cyclops was regarded by Homer and
the Achaeans as one of a lawless band of men who, as the poet says, ‘have
no plants or plough, no gatherings for council nor laws—each one giveth
law to his children and wives, and they reck not of one another’: he
was thus the very antithesis of tribal or of civic society. The payment
exacted was not wergeld, but the loss of an eye! In _Iliad_ v. 266 ποινή
denotes merely compensation for injury—there being no question of murder
at all. Zeus, having carried off Ganymede, the son of Tros, gave Tros a
gift of horses as compensation—υἷος ποινήν Γανυμήδεος. It was really a
case of ‘kidnapping,’ but Ganymede was not ‘held to ransom’—a price is
paid for his loss, which is very different from wergeld.

In _Iliad_ xiv. 483 Akamas having slain Promachus tells how ‘Promachus
sleeps, done to death by my sword, lest a brother’s vengeance (ποινή) be
too long unpaid.’ Here we have a formula of blood-vengeance applied to
the collective vengeance of war. Akamas does not seek the life of Ajax,
the slayer of his brother, but is satisfied by slaying any individual of
the enemy as a ‘satisfaction’ for his brother. But there is no question
of wergeld: death is the penalty desired and exacted. Though the phrase
δηρὸν ἄτιτος could be regarded as a reminiscence of the wergeld system,
in which a period of time was normally allowed for payment, it is quite
naturally applicable to blood-for-blood revenge, as δηρὸν can simply
mean ‘a long time,’ and the tendency of such vengeance was to quick
retribution.

In _Iliad_ xiii. 659 we are told of the slaying in battle of Harpalion,
son of Pylaimenes, king of the Paphlagonians. ‘And the Paphlagonians
tended him busily, and set him in a chariot and drove him to Ilios
sorrowing, and with them went his father, shedding tears, and there
was no atonement (ποινή) for his dead son.’ It is obvious that even if
we suppose the Paphlagonians (who were not Achaeans) to have had clans
and tribes and wergeld payments in their normal home life, we cannot
attribute to them any expectation of wergeld for a man killed on the
field of battle. Nor could the absence of such a compensation, to a
king who had much more wealth than he could ever enjoy, be regarded as
a cause of tears. Hence the word ποινή here must mean blood-vengeance,
the satisfaction arising from blood-for-blood retribution: and this
satisfaction was frustrated because the Paphlagonians did not happen to
see the man who slew Harpalion.[26]

There are only two passages in Homer in which ποινή unmistakably refers
to the genuine wergeld penalty. If those passages were missing no one
could speak of wergeld as a penalty for homicide in the society described
by Homer. We shall now examine those passages with a view to showing that
they do not represent the normal system of the dominant Achaean caste,
but are merely what Leaf would call ‘reminiscences,’ traces of a system
with which Homer and the Achaeans were familiar, but which they did not
adopt or practise amongst themselves.

In the first passage (_Iliad_ ix. 632-7) the scene is the tent of
Achilles before Troy. Owing to the secession of Achilles from the Greek
fighting-line the Trojans had been rapidly gaining the upper hand and
the Greeks were only saved from destruction by the sudden approach of
night.[27] An embassy is sent from Agamemnon to Achilles to induce him to
waive his wounded pride in the interest of the Achaeans, and promising
not only the restoration of his concubine Briseis but also a grant
of seven cities in the Peloponnese and many splendid gifts. Achilles
rejects every possible ‘satisfaction’[28] and implies that the insult
offered to him was so great that nothing short of the destruction of
Agamemnon and his army would assuage his wrath. Odysseus and Phoenix
having failed to bend his haughty spirit, the third member of the
embassy, Ajax, son of Telamon, who was certainly an Achaean, reproached
him with his indifference to the fate of his Achaean comrades, who
loved him, and reminded him of the self-control possessed by other men
in directing their passion for revenge, even when afflicted by a much
graver injury—that of murder. ‘Yet,’ he says, ‘doth a man accept payment
(ποινή) from the murderer of his brother or for the slaying of his son:
and the manslayer abideth in his home-land when he hath paid a goodly
price, and the man’s heat and proud spirit is restrained when he hath
accepted the payment—but for thee the gods have put within thy breast
an evil and implacable spirit.’ When Ajax delivered this speech, he had
already despaired of the success of the embassy[29]: and he mentioned
the act of the receiver of wergeld, not as the act of a normal Achaean
hero—the Achaeans of the Homeric age are of a very different type—but as
an act which was characteristic of a well-known kind of temperament, an
act which, he thought, might serve to emphasise the extreme abnormality
of Achilles’ desire for vengeance. If Achilles had had a son or a brother
who was murdered, and if he were on the point of crushing a whole village
in revenge, the argument of Ajax would have been more relevant to the
case, but even then it could not be taken to imply that either Ajax or
Achilles was a member of a society in which wergeld was a recognised
penalty. It is significant also that Achilles, in his reply, makes no
reference whatsoever to this argument. Viewing Homer as a whole, it
seems more than probable that this almost solitary instance of wergeld
was introduced by the poet, who[30] was aware of the existence of the
wergeld system, but was not concerned with its details. We need not call
attention to the non-factual nature of recorded speeches even in Greek
prose writers, and _a fortiori_ in the epic poets who reconstructed
speeches more or less as a historical novelist would at the present day.
It is in a similarly casual way that Homer gives us his one solitary
reference to a common tillage field[31]—a reference which Ridgeway makes
a basis for very wide generalisations as to Homeric land-tenure. No
Achaean uses the words: they are the poet’s own: hence they can easily
be applied to conditions of tenure with which the poet was himself
acquainted, but which were not necessarily adopted by the Achaeans during
their domination in Greece. In regard to the wergeld passage, Glotz
suggests that, while the verses themselves would lead one to suppose that
a certain ‘superior force’ constrained the kinsman of the victim to forgo
blood-vengeance by accepting a blood-price, still they do not prove that
there was any ‘social justice’ to intervene and impose a settlement or
to indicate the amount of the wergeld.[32] This view we cannot accept.
There is no explicit[33] reference, of course, to any ‘social justice,’
but the temperament which forgoes blood-vengeance and accepts wergeld
is the product of a social system which restricts and controls the
human passion for revenge. The Achaeans were above and outside such a
system: the Pelasgians, we think, were born and bred in it,—perhaps for
centuries. Allegiance to his tribal or civic unit and its laws alone
could restrain primitive man—especially in Southern climes where passion
dies very hard—from following the promptings of his natural blood-thirst.
In course of time individual members of a settled agricultural tribe
would inevitably develop a restrained temperament, through their fear
of violating those unwritten laws of which Antigone said[34] that they
‘are not of to-day or yesterday, but no man knows the time which gave
them birth.’ The Achaeans, who lived in every-day contact with such
types of men, must have observed even though they did not imitate their
self-restraint, and all the more because it was a quality which the
Achaean caste-atmosphere could not produce.

The second of the two genuine wergeld passages in Homer is found in
the description of the Shield of Achilles.[35] This passage raises many
problems and causes serious difficulties to Homeric scholars. Ridgeway,
who holds that the Achaean shield was of a round shape, and who assumes
that the Shield of Achilles was therefore round, still finds nothing
in Homer’s description to suggest that the Achaeans manufactured this
particular shield. ‘It is probable,’ he says,[36] ‘that whilst the shape
of the shield and the style or ornament are derived from central Europe,
its technique discloses the native Mycenaean craftsman employing for
his Achaean lords the method seen in Mycenaean daggers.’ Monro[37] also
points out that ‘in choice of subjects and in the manner of treatment
there is a remarkable agreement between the Mycenaean remains and the
Shield of Achilles.’ All the pictures, he observes, are taken from
incidents of every-day life, and the absence of any references to
commerce or seafaring life suggests the antiquity of the picture.[38]
Leaf, in his translation of the _Iliad_ (1883),[39] makes the following
comment: ‘The whole passage is clearly archaic, but the difficulty
lies in the fact that no parallel, so far as we know, is to be found
in the procedure of any primitive races which throws any light upon
this passage. Homer so constantly represents the kings as the keepers
of the “traditions,” and therefore sole judges, that he must have been
consciously moving in some different world when he depicted the Shield: a
world, too, in which there is no mythology and no sacrifice and nothing
distinctly Hellenic.’ In his _Companion to the Iliad_[40] (1892) and in
his latest edition of the _Iliad_ (1902) he has proposed a solution[41]
of the problems raised by this passage. He suggests that the passage does
not refer to a murder-trial, nor yet to an inquiry into the question of
payment of wergeld (as he held in his translation[42] of the _Iliad_),
but that it is an account of the establishment of a new murder-code,
which abolishes private vendetta and substitutes a compulsory ‘wergeld’
system. We will now quote the portion of this famous passage which
relates to homicide—and we will offer a solution of the difficulty.

On the Shield are depicted, amongst other things, two cities, one of
which is in a state of siege, the other in a condition of peace. It
is with the latter city that we are here concerned. In this city two
‘events’ are described: the first is a wedding, concerning which we need
only say that it is an event of common occurrence, which is not in the
least degree novel or abnormal; the second event[43] is a dispute about
the ransom of a slain man, which takes place in the ἀγορά of the city,
in the presence of the Elders, of the sacred heralds, and of a cheering
crowd of people. Leaf’s original translation (1883) (some of which he has
since abandoned, not, as we think, wisely) is as follows: ‘But the folk
were gathered in the assembly-place; for there a strife was arisen, two
men striving about the blood-price of a slain man: the one avowed that
he had paid all ... but the other denied that he had received aught,
manifesting it to the people: and each was fain to obtain consummation
on the word of his witness[44]: and the folk were cheering both, as they
took part on either side. And heralds kept order among the folk, while
the Elders on polished stones were sitting in the sacred circle and
holding in their hands staves from loud-voiced heralds. Then before the
people they rose up and gave judgment each in turn. And in the midst lay
two talents of gold to be given unto him who should plead among them most
righteously.’

This is the traditional view, which regards the scene as an investigation
by the Elders of the city as to whether a recognised wergeld has or has
not been paid. It is followed by Glotz, who proposes however some curious
explanations of details, which we shall presently discuss. It is the view
which we shall adopt when we have explained more precisely the exact
nature of the ‘court.’

There is however a second view, adopted by Leaf in 1887, 1892 and 1902,
first propounded by Müncher (1829), and supported by other scholars,[45]
which regards the scene as describing the first interference on the part
of some higher authority with the chaotic blood-feuds of savages.

Thirdly, there is the view of Lipsius that the trial was a genuine
murder-trial, and that the two talents of gold referred to by the poet
represented a genuine wergeld. This view is now generally rejected and
we shall see presently the objections which militate against it: but our
first duty is to formulate the arguments which will induce us to accept
the first and to reject the second hypothesis.

First of all, we have already protested against the opinion which
represents the early Greeks as cannibals living in a state of barbarism.
In our view, the only period of Greek history to which such a conception
may, with any justice, be applied is the period of the Dark Ages which
succeeded the Trojan war, when continual migrations and the breakdown
of tribal solidarity gave a temporary reality to the picture which is
drawn for us by Hesiod. The Pelasgian, Minoan, and Achaean periods,
however, present to our minds societies enjoying a civilisation which
was regular and orderly, and a culture which was real and distinctive,
even though it was also primitive. Again, the arguments which Leaf bases
on the linguistic interpretation of one or two verbs in this passage are
not only inconclusive for his hypothesis, as Glotz rightly holds,[46]
but suggest, we think, the opposite deduction. In 1883 Leaf translated
the words ὀ μὲν εὔχετο πάντ’ ἀποδοῦναι ... ὁ δ’ ἀναίνετο μηδὲν ἑλέσθαι
as ‘the one avowed that he had paid all ... the other denied that he
had received aught’: but in his latest edition of the _Iliad_ (1902) he
translates them (to suit his changed hypothesis) thus: ‘the one offered
to pay all ... the other refused to accept aught.’ He admits, of course,
that the verbs can have the meaning which he gave to them in 1883. But
he omits to note the solitary word πάντα which we consider a decisive
factor. If a man is said to ‘pay all’ surely that ‘all’ must have been
a sum fixed by a traditional arrangement. We can find no parallel, in
wergeld-paying communities, for a judicial decision on the part of the
tribe which compels a relative of the victim to accept the wergeld which
the tribe of which he is a member has traditionally recognised as the
complete payment of the debt. It is only if payment is in default or
dispute that the tribe would assert itself to prevent a feud of blood.
When Homer adds, after the clause ὁ δ’ ἀναίνετο μηδὲν ἑλέσθαι, the words
δήμῳ πιφαύσκων, surely this means ‘declaring it to the people’ rather
than ‘manifesting it to the people,’ for it is absurd to suppose that the
actual wergeld was included in the scene, since such a payment, as we
have shown, usually consisted of cattle and sheep.

Again, we may mention what we consider a very serious weakness in
Leaf’s later position. He has to assume that the scene in question is
not a single scene, but two scenes. He thus describes the affair in
his _Companion to the Iliad_[47] (1892). ‘A man has been slain: the
homicide has offered a money payment in commutation of the death, but
the next of kin refuses to accept it. Both parties come into the public
place attended by their friends and dispute. This scene ends here. The
next scene shows us the dispute referred to the Elders, the King’s
Council, who are to decide what course is to be taken. The importance
of this double scene lies in the fact that it shows us criminal law
in its very birth. No criminal law can be said to exist when it is a
matter for private arrangement between the homicide and the next of kin
to settle the offence, if they like, by a money payment, instead of by
the normal blood revenge, which means the exile of the homicide if he
is not killed. But criminal law begins when the people claim to have a
voice in the question and to say that the money shall be accepted.’ We
will merely say, by way of comment, that this two-scene theory not only
is artistically improbable but finds no support whatever in the text of
Homer.

A period of thirteen years separated the date of the _Companion_ from
that of the publication of _Homer and History_. Though in this latter
work he does not mention the Shield of Achilles, still we feel that if
Leaf had applied his later theory of the distinction between Achaeans and
Pelasgians to the solution of his earlier problem, he could have thrown
considerable light on the question. In 1883 it was the absence of a king
in the trial that troubled him. But is it not now clear that the ‘Kings’
of Greece from 1300 B.C. to 1100 B.C. were Achaeans, bellicose war-lords,
who held in their hands the ‘sceptres’ and dealt out dooms to the people,
but who took little interest in local disputes, who did not understand,
perhaps, and probably did not adopt, many of the Pelasgian ‘dooms’?[48]
Hence, if we suppose that the Elders in this scene are not Achaeans but
Pelasgian chiefs of clans and tribes, we can quite easily understand the
absence of the Achaean king or over-lord.

Leaf gives us a very clear picture in _Homer and History_[49] which
we may utilise to remove the difficulties which he felt in 1883. ‘All
this time,’ he says, ‘the main population of Greece was going on with
beliefs and customs undisturbed, unaffected by the change of masters[50]
at the Castle. The group society of the Pelasgians—φυλή, γένος,
φρατρία—continued intact, abiding its time. The epic of the Achaeans
takes no notice of it, why should it? The Achaeans knew little and cared
less about the customs of their subjects, unless at times called in
to settle disputes based on silly family usage, unworthy of a lord’s
notice.’ Though Leaf does not say so explicitly, we think that in his
conception of the Homeric wergeld he is now much nearer to the position
he held in 1883 than to the positions he adopted in the intervening
period.

If we combine then the arguments based on the text of this Homeric
passage with the results of Leaf’s latest researches and also with the
general principles outlined in our Introductory Chapter, we may conclude
that this trial-scene presents us with a genuine wergeld dispute, not
within the Achaean caste, but amongst the Pelasgian tribal folk. We
have seen that scholars are unanimous in holding that the Shield is
of an essentially Mycenaean and therefore Pelasgian pattern. We have
quoted Seebohm at length for the connexion between the wergeld-system of
homicide-compensation and tribal organisation and control.[51] We have
quoted Leaf’s recent views as to the probable existence of clans and
tribes among the Pelasgian subject-people. The conclusion we have drawn
is therefore a practically self-evident deduction from assumed premises.

Before we apply this general conclusion to the solution of minor
difficulties presented by this Homeric passage, it may be desirable to
discuss briefly the view of Lipsius which has been already mentioned. He
maintains that the trial in question was a murder-trial—a decision of
homicidal guilt or innocence: he therefore holds that the two talents of
gold were the actual wergeld. He says[52]: ‘Upon him (of the claimants)
who, according to their (_i.e._ the judges’) opinion—at any rate in
the verdict of the majority—has given his opinion best, are bestowed
two talents of gold which have been laid down in front of them. They
(_i.e._ the talents) constitute, therefore, the objects of the dispute,
the amount of the blood-atonement which the accused deposits and is to
get back in case of victory,[53] but otherwise must transfer to the
plaintiff.’ This opinion has been attacked on many grounds, but chiefly
on the ground that the sum of two (Homeric) talents of gold is too
small to constitute a wergeld-payment.[54] But it does not follow that
the Achaean standard of values was necessarily that of their Pelasgian
subjects. Even though it is true that in Homer a goodly price is paid for
a freeman sold as a slave[55]; for a woman[56]; and for the ransom of the
kidnapped son of a king[57]; although a ‘ransom unspeakable’ (ἀπερείσι’
ἄποινα) is offered for a warrior’s life on the field of battle[58]; and
Lycaon, son of Priam, is kidnapped and sold as a slave for 100 oxen and
liberated by a ransom of 300 oxen[59]:—although ten talents of gold is an
insignificant portion of the ‘placation’ offered to Achilles,[60] and two
talents of gold is the reward paid by Aegisthus to his scout,[61] there
is nothing in all this to prove that, amongst the poor tribal tillers
of the soil, the sum of two talents of gold (which, though it was not
real money, was still a valuable commodity) may not have sufficed as
wergeld for a tribal race ruled over by strangers. The really insuperable
objections which we find to the view of Lipsius are the following: In
the first place tribal wergeld, even where it is comparatively small,
as it was in Ireland under the Brehon Laws, is generally a collection
of numerous valuables, whether cows or sheep or slaves. Even when money
is substituted, the coins are small in value but numerous[62] (_e.g._
200 solidi, 400 argentei). The reason for this lies in the diffused
nature of the responsibility for payment, quite a number of families
and individuals of the wider kindred being liable to contribution.
Secondly, there is no parallel, in analogous instances of wergeld, for
the assumption that the total amount was collected and deposited in court
at any time, much less before the validity of the murder-charge had been
established. In this case, the accused asserts (according to Lipsius’
translation) that he had paid the whole sum: but surely ἀποδοῦναι cannot
be taken to mean ‘that the accused had deposited in court the normal
wergeld.’ How could the accused assert that he had paid it, how could
the plaintiff deny that he had received it—if the actual wergeld were
deposited in court before their very eyes? Thirdly, to say that the two
talents would be given to the most convincing pleader is a very strange
way of describing a judgment of guilty or not guilty on a charge of
homicide. Thus the text of Homer refutes the theory of Lipsius. Maine[63]
indicates the real function of the two talents in this court by showing
that they served the same purpose as the _sacramentum_ or court-fee of
Roman law.

Assuming then that the court here described by Homer was a group of
Pelasgian tribal chiefs or elders who could regularly be appealed to in
such disputes, and who would also perform the functions of a murder-court
if any person accused of homicide appealed to them to establish his
innocence, we shall conclude our discussion by clearing up some minor
points of difficulty.

We cannot concur with Glotz[64] in the opinion that the result of
the verdict is a matter of life or death for the murderer. He says
‘Il peut y avoir un jugement de condamnation entraînant l’esclavage
ou la mort.’[64] But quick justice is not a characteristic of the
wergeld-exile-slavery-death system. We have seen how[65] among the Welsh
tribes wergeld was paid in fortnightly instalments: and we may suppose
that failure to pay any one instalment would have been a common subject
for litigation. In the laws of King Edmund of England (A.D. 940-946)
a period of twelve months[66] was allowed for payment of wergeld—‘to
prevent manifold fightings.’ In the laws of Henry I. the period was fixed
by ‘Sapientes.’

Again, in this Homeric passage as it is usually interpreted, both
pleaders cannot have been right. Payment of wergeld was very different
from a modern transfer of cash. It involved a complete readjustment
of the whole property of two clans, so that hundreds of people were
aware of the transaction. If however we suppose that a portion of the
wergeld was unpaid, it will be possible to maintain that both parties
were _bona fide_ in their assertions. We will assume that Homer, whether
he is indulging his imagination or describing something which he had
actually seen on a shield, is giving us an account of a typical wergeld
dispute such as must commonly have taken place in Pelasgian life: we must
especially remember that the accused (whom we assume to be the murderer)
and the plaintiff are isolated members of large groups concerned in the
payment, though the accused would normally have to pay the greatest
individual share, and the plaintiff, if he was the nearest relative of
the slain, would receive a large share of the wergeld. Let us suppose,
then, that some of the wergeld had been paid, and that the part which had
not been paid was due, not from the murderer himself or his immediate
relatives,[67] but from some distant family of cousins who, unknown to
the defendant, had defaulted or were unable to pay. We can, on this
assumption, credit the defendant (that is, the murderer) with _bona
fides_. Or again, assuming still that the defendant is the murderer, if
we suppose that the disputed ‘instalment’ had been received, unknown to
the plaintiff, by a distant family of his wider kindred for whom he is
acting as the leading ‘avenger’ in negotiation—in a word, if we suppose
that both litigants are acting as representatives of large groups, we
can understand the contradiction in their statements which would be
less intelligible if they were speaking for themselves personally.
And have we not here a clue as to the constitution of the crowd which
attended at the trial? Homer distinctly says that the crowd ‘cheered
on both parties’[68]: and he adds: ‘taking part on either side’[69]:
so interested were they in the issue, that the heralds had to maintain
order.[70] This implies that there was a certain danger of rioting
amongst the crowd—of something like the ‘manifold fightings’[71] of the
Anglo-Saxons.

We cannot agree with the general view that this scene must be expected
to contain a picture of intense public interest.[72] The parallel scene,
in the city at peace, is a wedding! The Shield-picture contains also a
reaping scene and a ploughing scene. Surely the artist was not so much at
pains to reveal subjects of public interest as to depict topics of common
occurrence. To us it seems obvious that one of the most frequent scenes
of tribal life was a wergeld dispute: and as this dispute concerned the
property of a large number of people, all such persons would be naturally
interested in the verdict. In all ancient codes prominence is given to
laws relating to theft, to inheritance, to marriage settlements and the
like, rather than to what we should now consider graver matters. The
reason is, that all ancient thought and religion centred around questions
of property. Hence we think it more than probable that the ‘folk’ of
the Homeric trial scene are not the general public but are rather the
wider kinsmen of the plaintiff and the defendant. It would be not only
natural but also right that they should have supported each one his own
side, just as they would do in the event of a clan feud. But the success
with which the heralds checked the passions of the people shows how very
different the ancient Pelasgians were from the barbarous races who only
accept wergeld under duress, and who hail with triumph the slightest
pretext for another feud. Glotz, who thinks of the Pelasgians as he would
of any barbarous primitive people, thinks therefore that in this scene
the crowd came together armed to the teeth! ‘Les hostilités, un instant
suspendues, menacent d’éclater à nouveau. Les deux ennemis qui déjà se
résignaient mal à une transaction, échangent des injures, en attendant
qu’ils se cherchent les armes à la main.’[73]

What now, we may ask, is the meaning of ἴστωρ in this passage? Homer says:

    ἄμφω δ’ ἱέσθην ἐπὶ ἴστορι πεῖραρ ἑλέσθαι.

Leaf, in 1883, translated thus: ‘and each one was fain to obtain
consummation on the word of his witness.’ Later (1892 and 1902), when he
conceived that there were really two scenes described in the picture, he
regarded the ἴστωρ as an arbitrator: ‘each one relied on an arbitrator
to win the suit.’ We can only say that while the etymology and use of
the word ἴστωρ permit of both interpretations, the relation of the verse
to its context seems to us immeasurably in favour of the interpretation
‘witness.’ We may presume that the ‘witnesses’ were included in the
‘people’ and were brought forward to prove the actual transference
of property which had or had not taken place. They are, therefore,
similar to the ‘compurgators’ who figure so prominently in medieval
litigation.[74]

Since Homer, then, the poet of the Achaeans, has given us only two
incidental references to wergeld, we are not surprised that he has told
us nothing about the details of the system. We may indeed infer that the
amount payable was very large,[75] but Glotz reveals how little he is
himself acquainted with the system when he asserts[76] that the offender
only escaped death at the cost of ruin. ‘La ποινή,’ he says, ‘c’est
une large, parfois peut-être une totale dépossession de l’offenseur
au profit de la partie lésée. A la mort juste on n’échappe que par la
ruine.’ It is probable that the payment took the form of ‘women, cattle,
or horses.’[77] But in the absence of more definite evidence[78] we must
fall back on what we can learn from analogous instances. It is for that
reason that we have discussed at so much length the wergeld system in our
introductory chapter. We have no doubt that the wergeld revealed by Homer
was a genuine wergeld, and not a mere clumsy device for terminating the
feuds of savages exhausted by slaughter.

We must now search further, in the text of Homer, for anything he may
have to tell us of other alternative penalties existing amongst the
Pelasgian people. In this matter we cannot trust to the analysis of
Glotz, for he knows of no distinction between Achaeans and Pelasgians,
and hence his account is misleading.

We may say at once that we cannot find any genuine Pelasgian reference to
the death penalty as an alternative, in cases of homicide _outside the
clan_, though from other analogies and, indirectly, from Homer[79] we may
infer that the option was valid.

It is also doubtful if we can detect any genuine instances of slavery
as a penalty for homicide. Glotz calls attention[80] to a very curious
custom which is found among some primitive peoples, the custom of
compelling a murderer to have himself ‘adopted’ by the ‘family’ of the
victim. The murderer takes the place of the dead man! Among the Ossetes
‘a mother does not hesitate to recognise as her son the man who has
deprived her of her son’—but this adoption does not give him a right to
succeed to property. Glotz[81] thinks it more than probable that the same
custom prevailed in the Homeric epoch, for he regards wergeld as a kind
of debt, and slavery was a universal solvent of debt down to the time of
Solon, by whom it was still permitted in the case of a daughter who was
guilty of misconduct (_prise en faute_).[82] The offer of a daughter in
marriage by Agamemnon to Achilles, in an age when men bought women as
venal chattels, Glotz regards as a species of wergeld (ποινή).[83] He
quotes[84] Apollodorus[85] for the eight years ‘captivity’ of Cadmus with
Ares whose son (the dragon) he had murdered—after which Ares gave him his
daughter in marriage.[86] For having massacred the Cyclopes,[87] Apollo
became a shepherd in the service of Admetus.[88] Heracles, having slain
Iphitus, serves Omphale for three years.[89] The only Homeric reference
which Glotz mentions is a passage[90] which describes the year’s service
of Apollo and Poseidon with Laomedon for a sum of money, at the command
of Zeus: they built the walls of Troy, but Laomedon refused to pay their
wages. As there is here no question of murder, we may say that there
is nothing relevant about this Homeric passage.[91] Nor can we attach
any weight to legends presented by Apollodorus, for, as we shall see,
the abolition of wergeld in the seventh century B.C. made exile the
inevitable penalty for murder and left the murderer no property to take
away with him, and therefore he had little option but to accept menial
service with a stranger.

If we reflect on the nature of the wergeld system, we shall see how
difficult it would be to apply a penal form of slavery in default
of payment within a tribe or in any definite locality. Wergeld was
essentially a ‘diffused’ penalty, involving a large number of debtors,
any one of whom could, equally with the murderer, be sold as a slave at
the command of tribal authorities. To enslave a distant relative[92]
of the murderer for debt would constitute a severe form of collective
punishment: and it is much more probable that, in default of payment
on the part of any individual family, the deficiency would have been
contributed by the rest of the clan.[93] It is improbable that an entire
family or gwely would have been so poor and needy that they could not by
a series of instalments have discharged the wergeld debt. In a law of
Henry I. it is decreed[94] that ‘Amends being set going (_i.e._ first
deposits being paid) the rest of the wergeld shall be paid during a term
to be fixed by the _Sapientes_.’ And we must not ignore the role of the
_phratores_, or of the _congildones_, who were selected from neighbouring
clans, and who might have to contribute in certain emergencies. Thus, in
another law of Henry I. we read[95]: ‘If the slayer has no maternal (or
paternal) relations the _congildones_ shall pay half, and for half he
shall flee or pay.’ In ancient tribal Ireland an instance of bondage is
related in the _Senchus Mor_,[96] but failure to pay occurs only in the
case of an illegitimate son, who would normally have no real share in
family property. There is here, indeed, a sort of ‘collectivity.’ Six men
of the tribe of Conn of the Hundred Battles, including four brothers and
an illegitimate nephew, had slain a brother who was under the protection
of another tribal chieftain. A compensation was demanded, which is not
so much wergeld as a fine payable to the chief. Five of the six men were
able to pay, but the illegitimate murderer could not pay: so his mother
was handed over to the tribe as a bondwoman in pledge. However, the fact
that the slain man had been adopted by an outside tribe, and that the
money was paid to the chief, forbid the conclusion that money was paid
for murder within the kindred in tribal Ireland or that kin-slaying was
normally atoned for by bondage in the family of the victim.

It may be urged that slavery was accepted as an expiation of
_manslaughter_ within the kindred on the ground that wergeld was
impossible, that death was too dreadful, and that perpetual exile or
outlawry was too severe a punishment. It is obvious, from the very nature
of the case, that wergeld cannot apply to bloodshed within the clan
or the wider kindred. Seebohm has found no instance of such a penalty
amongst the tribes whose customs he has investigated. He points out that
‘if it (_i.e._ _the murder_) was of someone within the kindred, there was
no slaying of the murderer. Under Cymric custom there was no _galanas_
(_i.e._ wergeld), nothing but execration and ignominious exile.’[97]...
‘There is no feud within the kindred when one kinsman slays another.
Accidental homicide does not seem to be followed even by exile. But
murder breaks the tribal tie, and is followed by outlawry.’[98] ‘Tribal
custom everywhere left the worst crime of all—murder of a parent or
kinsman—without redress, ... unavenged.’[99] Glotz, also, holds that
there was no drastic punishment for bloodshed within the clan: ‘Rien
qu’un parent fait contre un parent n’est susceptible de châtiment.’[100]
But the graver crimes against one’s kindred are penalised, he says, by
exile:—‘La peine la plus grave qui soit ordinairement infligée ...
c’est l’expulsion de la famille.’[101] We believe that in all clans
which worshipped ancestors kin-slaying was usually punished by exile,
perpetual or temporary. In a later chapter, when we come to discuss the
survival of primitive clan-customs in historical Attica, the grounds for
this belief will become apparent. At present we will merely say, with
Fustel de Coulanges,[102] that kinsmen would not encourage the presence
of a kin-slayer as a slave in daily intercourse with his clan, nor would
they easily permit him to take part, at least for a time, in the worship
of the family hearth—of the clan ‘fire’ which he by his act had to some
extent extinguished.[103] We prefer to see him, as Glotz[104] describes
it, stripped naked, and escorted to the clan boundaries, beaten and
insulted, declared an outlaw for years or for ever for treason to his
blood. Later, we shall see[105] that when Athenian State-magistrates are
charged with the execution of the sentence of death, the kin-slayer may
no longer escape, and his clan will refuse to have his corpse ‘gathered
to his fathers.’ It was thus that the King of the Wisigoths commanded the
judge to punish with death the kin-slayer who in the system of ‘private
vengeance’ saved his life by becoming an outlaw from his clan.[106]

We find a reference to the exile penalty _for kin-slaying_ in Homer.[107]
We are told that Tlepolemus, son of Hercules by Astyocheia, came to Troy
from Rhodes, whither he had fled, because when grown to manhood he had
slain his father’s maternal uncle, an old man, Likymnius, of the stock of
Ares. ‘Then with speed he built ships and gathered much folk together and
went fleeing across the deep, because the other sons and grandsons of the
mighty Hercules threatened him.’ So he came to Rhodes, a wanderer, and
his folk settled by kinship in three tribes and were loved by Zeus.’ Leaf
would probably regard this passage as non-Homeric, since it happens to
occur in the ‘Catalogue’: but this will not vitiate our argument, as the
predominant atmosphere of post-Homeric Greece was, in Leaf’s view, that
of the ‘group-system’ and there was no break in the custom of tribal
wergeld. We may assume[108] that the family of Hercules was Pelasgian.
Homer does not mention the place where the slaying took place, but it
was, possibly, Mycenae, of which Electryon, father of Likymnius, was at
one time king. Likymnius was a half-brother of Alcmene, the mother of
Hercules, whose birth, according to Homer,[109] took place at Thebes.
Likymnius was, therefore, a maternal uncle of Hercules and grand-uncle
of Tlepolemus. In a normal clan the avengers of Likymnius must have
included the brothers of Tlepolemus, since the homicide affected the
whole kindred-group. The case is remarkably similar to that described in
_Beowulf_, and referred to by F. Seebohm,[110] but Beowulf took no part
in the quarrel between his maternal and paternal kindreds and the quarrel
was in violation of tribal usage. This is precisely the kind of event
which would have tested to the utmost the solidarity of the kindred; for
there was a clan law that all the members who were akin either paternally
or maternally had to act together in the avenging of a kinsman. The
murder of Likymnius—who was not a kinsman of Amphitryon, grandfather of
Tlepolemus, but who was akin to Hercules, to Tlepolemus and the brothers
of Tlepolemus—was a crucial test, as it involved a conflict between
loyalty to clan law and loyalty to one’s nearer relatives. When Homer
speaks of the avengers of Likymnius as the ‘sons and grandsons of the
mighty Hercules,’ it does not follow that the family of Hercules were the
sole avengers, but that, as the nearest relatives of Tlepolemus, their
action was the most important, seeing that they were the kinsmen whose
obedience to clan law was most difficult and, therefore, most appreciated.

Glotz[111] does not seem to us to have rightly interpreted this passage.
He refuses to believe that the duty of vengeance was so strict as to
compel a man to exercise it against a relative of the paternal line,
in the interest of a victim of the maternal line. Moreover, he argues
that the sons of Hercules are not the avengers of Likymnius, for, if
they were, they would not have allowed him to depart. Here, we believe,
Glotz is confusing the exile penalty of Pelasgian tribes with the
Achaean exile, which was a flight from death. They let him go, says
Glotz, because they wish to avoid a feud within the clan—‘Ils veulent
seulement que le meurtrier s’en aille, parce qu’ils entendent ne pas se
brouiller avec des alliés.’[112] We think, on the contrary, that the
case of Tlepolemus furnishes a splendid instance of the solidarity of
the clan. There was no question of wergeld—nor, we think, of slavery. It
was a question of exile or death. The brothers of Tlepolemus appear to
lead the avengers. From this we need not infer that Likymnius, an old
man, had no sons or grandsons or brothers living at the time. We have
said that a clan conflict was averted by the decision of the sons of
Hercules to join in avenging. Rather than tolerate in the clan society,
in the worship of common ancestors, the slayer of a kinsman, the brothers
of Tlepolemus would, if necessary, have killed him. It is with _death_
that they threatened him, if he remained. But his exile was not a flight
from death: he was granted a certain time in which to build himself
ships. Such delay is characteristic of Pelasgian but not of Achaean
vengeance. There would be some difficulty in interpreting the reference
to the people whom he carried with him into exile, were it stated, as
fortunately it is not, that they were his kinsmen. His companions were
hangers-on, lackland men who were content to join a powerful ‘exile’
emigrant. He founded in Rhodes a city, in typical Pelasgian fashion,[113]
dividing the folk by kinship into three tribes. It is perhaps because he
was a son of Hercules that his exile appears to be no excessive penalty
but a mere inconvenience. It is perhaps for the same reason that he was
loved by Zeus, the father of Hercules.[114]

For the Pelasgian penalty of exile as an alternative to wergeld for
homicide _outside the kindred_, the most relevant, though indirect,
Homeric reference is a passage in the _Iliad_[115] which we have
already discussed, in which we hear of a man-slayer who abides among
his people when he has paid a goodly wergeld. We have already argued
that this passage refers to the tribal customs of the Pelasgians, and
that the Achaean Ajax, who uses the words, is borrowing, for rhetorical
purposes, a sentiment which did not characterise the Achaean attitude
to homicide.[116] We may now point out furthermore that the vagueness
of the description of the wergeld payment, both in this passage and in
that which relates to the Shield of Achilles, suggests, if it does not
prove, that the description proceeds from Achaeans who were not familiar
with the details of the system, but had merely become acquainted with
its outstanding principles. When Homer says ‘a man has been known to
accept a blood-price for the death of a brother or a son,’ the statement
is only a vague description, as anyone who is familiar with real wergeld
will admit. We have seen that a large number of people participated
both in the payment and in the satisfaction. Whether Homer can be taken
to mean that exile would have absolved the murderer’s kindred from all
payment, as it did in the laws of King Edmund of England,[117] or whether
it merely acquitted the murderer of his share of the debt,[118] are
questions which, owing to the vagueness of our Homeric references, cannot
here be decided.

These are the only Homeric references to the exile penalty for homicide
which can be definitely associated with Pelasgian customs. There is a
passage in the _Odyssey_[119] in which the penalty is referred to, but
we think it wiser to interpret the passage as an Achaean reference, and
to regard the exile as a flight from death. Odysseus, having slain the
suitors—an action characterised by arbitrary Achaean hypervengeance—urges
his son Telemachus to consult with him and take joint measures to prevent
retaliation from the relatives of the slain. He says to Telemachus: ‘A
man who has slain a single individual amongst the folk (ἐνὶ δήμῳ) goes
into exile and leaves his connexions and his native land, even when the
slain man has not many “helpers” left behind: but we have slain the
mainstay of the city, those who were noblest of the youths in Ithaca, so
I bid thee take thought upon the matter.’ The outlook of the Achaean
over-lord is clearly indicated in this passage, in the importance which
Odysseus seems to attach to the numbers or military strength of the
avenging relatives. For the Achaeans, murder went unavenged if there
were no avengers or if the avengers were not sufficiently powerful to
retaliate. Blood was rarely shed in vengeance, because the murderer
usually fled and took precautions against pursuit. The idea of fleeing
when the fear of ‘reprisals’ was negligible was not very intelligible to
an Achaean, and it is mentioned here as an instance of unusual caution,
in order to emphasise the danger for Telemachus and Odysseus who remain
unprepared at home surrounded by a host of powerful and hostile Ithacans.
Later on, Odysseus suggests that music and dancing should resound in the
house to prevent the rumour of the slaughter being disseminated until he
has time to prepare his plans.[120] When, eventually, the truth became
known, the relatives of the suitors took counsel together,[121] in the
manner of an Achaean council of war, but not as a Pelasgian clan or
tribe assembled to judge of guilt or innocence. Some said that Odysseus
was justified in his act; others prepare for war. The fight ensues, and
many are slain.[122] Athene[123] intervenes to reconcile the feud; she
acts not as the patron of clan law but as the symbol of Achaean military
discipline. Odysseus does not depart into exile: the covenant which the
outraged relatives submissively enter into came from the throne of Zeus,
and pledged them to serve the king for all his days.[124]

Neither can we put forward as evidence for the Pelasgian exile
penalty for homicide the passage in the _Iliad_[125] in which Priam’s
inexplicable appearance before Achilles and his friends evokes in them
an emotion which Homer compares to the amazement (θάμβος) felt when a
man ‘slays one in his country and goes into exile to the house of a rich
man[126] and wonder possesses them that look at him.’ The amazement here
described would be equally natural whether the stranger was an exiled
Pelasgian or, as Leaf suggests,[127] an Achaean fleeing for his life.
Moreover, suspicion has been thrown upon the whole passage by the
reference, in two scholia, to ‘purification,’ which has led Müller[128]
to infer that the scholiasts read, in their texts, ἁγνιτέω instead of
ἀφνειοῦ. We hope to show later[129] the error of Müller’s view that
purification for homicide was a characteristic of the Homeric age, and
hence we maintain that either the whole passage is a later interpolation
or that the reading ἁγνιτέω found its way into some Homeric texts
from a marginal gloss of post-Homeric origin, suggested by a false
interpretation of the word ἄτη in a preceding verse.

Hence, while the poems of Homer indicate beyond reasonable doubt the
existence of a genuine Pelasgian exile penalty, it is significant that
the poet of the Achaeans tends to ignore the exile[130] alternative as he
tends also to ignore the wergeld alternative, in the system of penalties
for homicide adopted by a tribal people outside the Achaean caste.


VOLUNTARY AND INVOLUNTARY HOMICIDE

It is generally[131] asserted that primitive societies recognise no
distinction either between wilful murder and manslaughter (which presumes
a certain degree of guilt), or even between wilful murder and accidental
slaying. The reason assigned is that bloodshed, even in comparatively
advanced civilisations, is a ‘civil’ rather than a ‘criminal’ offence—a
matter for damages and compensation rather than for exemplary punishment.
Thus Glotz[132] says: ‘L’intention n’est rien: le fait est tout. Pas de
circonstances atténuantes. Nulle différence entre l’assassinat lâchement
prémédité et l’homicide involontaire.’ To the possible objection that
the distinction is found in Greek legends, as given by Aeschylus,
Apollodorus, Pausanias and others, he replies that these legends are
of late origin—a view which is not quite consistent with his usual
attitude.[133] He thinks that those legends were invented by the
Athenians to restore the history of the Areopagus, the Palladium, and
the Delphinium courts.[134] He attributes the moral distinction, which
these courts are assumed to imply, between voluntary and involuntary
homicide to a period ‘not much anterior to Dracon,’ but he admits that
the idea was being developed before that time in ‘family law’—that is, in
clan justice. He seems to us rather inconsistent in holding that ‘dans
les lois sur l’homicide (de Dracon) apparaît pour la première fois la
distinction du meurtre prémédité et du meurtre involontaire,’ and in
maintaining at the same time that it was a ‘principe lentement élaboré
dans la justice sociale.’[135] The distinction was developed, he thinks,
not from any philanthropic motives but only because private vengeance was
abolished and the newly established power of the State sought thereby to
restrain the taste for blood. Now we may admit, with Glotz,[136] that the
distinction is a late development in most races whose social customs are
known to us—for instance, amongst the Germans, the Slavs, the Celts, the
Scandinavians, and the Ossetes. France does not seem to have recognised
the distinction in its written laws before A.D. 819. In feudal England
it does not make its appearance before the time of Henry VIII.[137] But
Seebohm[138] shows that in the Lex Wisigothorum (about A.D. 650) ‘a
homicide committed unknowingly (_nesciens_) is declared to be ... no
cause of death. “Let the man who has committed it depart secure.”’ The
introduction of Roman law may have caused this innovation, for Roman law
admitted the distinction from the time of the Twelve Tables[139] onwards,
and this code was still operative amongst Gallic peoples when they were
conquered by the Wisigoths.[140] From _Beowulf_, however, Seebohm[141]
infers that in Scandinavia within the clan ‘accidental homicide does not
seem to be followed even by exile.’ The poem says[142]: ‘Hæthcyn by arrow
from hornbow brought him (Herebeald) down, his near kinsman. He missed
the target and shot his brother. One brother killed the other with
bloody dart. That was a wrong past compensation.... Any way and every way
it was inevitable that the Etheling must quit life unavenged.’ In this
case, of course, there could be no question of wergeld.

In the ‘Canones Wallici’[143] (Celtic laws of the period A.D. 700-800),
which are based on the tribal wergeld system as adopted by the Church, we
find this clause: ‘Si quis homicidium ex intentione commiserit, ancillas
III et servos III reddat.’ This implies a different penalty when murder
was not _ex intentione_.

The Brehon laws[144] contain minute distinctions of payment in different
cases of wounding. If a bishop’s blood was shed in certain quantities,
the guilty person had to be hanged or to pay seven _cumhals_ (slaves)—or
their equivalent in silver and gold: if a less quantity of blood was
shed, the aggressor was condemned to lose his hand. If the blood of a
priest was shed in certain quantities, the criminal’s hand was cut off
or seven _ancillae_ paid, if the act was intentional; if it was not
intentional, one _ancilla_ sufficed for compensation. It is clear then
that this distinction is not always absent even in a wergeld system where
the crime of bloodshed is particularly objective. We have seen[145]
that wergeld often carried with it an ‘honour-price,’ an atonement
for the insult, which was caused by homicide. This price, it seems to
us, could easily admit of a modification of the penalty. Moreover, it
is possible that wergeld is not always to be regarded as a measure of
the loss sustained by a clan, but as also to some extent a ransom of
the prisoner’s life. ‘Partout,’ says Glotz,[146] ‘la composition varie
selon le rang de la victime: et selon le rang du coupable: elle est à la
fois la rançon du meurtrier et le prix du sang versé.’ For the Germans,
according to Coulanges,[147] ‘la composition est un rachat, non pas
rachat de la victime mais rachat de la vie du coupable.’[148] Is it not
natural to suppose that a system of compensation for homicide which
contains such minute differentiations would leave the road open for a
discrimination as to degrees of guilt?

It is time to ask whether Homer has anything to say of this distinction.
We will admit that he says nothing which is directly relevant to the
question. But we will examine two passages with a view to showing that
the distinction was known outside the Achaean caste.

The first passage is from the _Odyssey_[149] and is concerned with
King Oedipus the parricide and with his punishment. Odysseus narrates
how, in Hades, he saw Epicaste, and how ‘he that had slain his father
wedded her and straightway the gods made known these things to men. Yet
he abode in pain in pleasant Thebes, ruling the Cadmeans, by reason of
the baneful devices of the gods. She indeed went down to Hades ... but
for him she left behind many a woe, such as the Erinnyes of a mother
bring to pass.’ Of all forms of homicide, that by which a son deprived
a parent of life was regarded as the most horrible. Probably even the
Achaeans, as we shall see presently, felt a certain horror at the thought
of parricide. Homer, then, cannot understand why the gods, who had taken
the trouble of revealing the crimes of Oedipus, nevertheless permitted,
if they did not encourage, his continued rule over the Cadmeans. All
other parricides of whom Homer had ever heard had taken to flight! And
what was the pain which Oedipus endured? Was it remorse of conscience?
Or was it his self-inflicted blindness? Euripides[150] tells how the
sons of Oedipus confined their father under bolts and hid him away that
his sad fate might be forgotten. We shall see, later, when we analyse
the Oedipodean legends as given by the Attic dramatists, how Oedipus is
filled with natural grief, but is free from that sense of moral guilt
which we should expect him to have felt. He constantly pleads that he
did not know that the man whom he slew was Laius, his father. Was this
plea invented in later years, or was it part of the original legend?
Seebohm[151] has told us that in primitive clan societies ‘accidental
homicide within the kindred does not seem to be followed even by exile.’
Was it, then, because of ‘accidental’ or involuntary[152] parricide that
Oedipus continued to rule over the Cadmeans? Oedipus was not an Achaean.
Minoan or Cadmean, which was he? It does not matter, for our purpose, if
he obeyed the ‘dooms’ of private vengeance in tribal society. Homer is
equally vague about the working of the mother’s curse. Why did Epicaste
curse Oedipus? The Attic dramatists do not mention this. Oedipus is
cursed in Homer for one reason, and, as we think, for one reason only.
It is because other slayers of kinsmen who did not suffer punishment
were usually cursed. Thus Meleager, who in a quarrel slew his uncle,
was cursed by his mother Althaea.[153] It is an Homeric maxim that the
Erinnyes command men to honour their parents.[154]

The second passage which we shall cite is from the _Iliad_,[155] a
passage in which the ghost of Patroclus tells Achilles how his father
Menoitius brought him away from home to the realm of Peleus on the day
when he slew the son of Amphidamas, though he was but a boy and did not
intend it, and was angry over dice.[156] As this is the only passage
in Homer which contains an explicit reference to involuntary homicide,
and as the slayer is compelled to flee for ever precisely as if the act
had been wilful murder, this passage has been quoted[157] as a proof
that in early Greece there was no distinction made between murder and
manslaughter. If, however, we are right in our discrimination between the
Pelasgian and the Achaean attitudes to homicide, it would almost seem as
if the passage could be regarded, not indeed as a proof, but perhaps as
an indication, of the existence of this distinction in Homeric Greece.
May we not suppose that the words of Patroclus are not an expression of
subjective innocence by a member of a caste which regarded only objective
facts, but a ‘reminiscence’ of a higher ethical code which obtained in
the tribal villages around the fortress, and which had enshrined itself
in the language which the Achaeans learned from the Pelasgians? In the
words of Patroclus we think we can find an echo of a distinction which,
in later times, is made the basis of grades of penalties in certain
laws of homicide. Plato, whose penal code is probably modelled on the
unwritten laws of tribal institutions, points out that a person who slays
another in a passion but with intent to kill shall be exiled for a period
of three years, while a person who slays in a passion without intent to
kill is punished by exile for two years. He adds that ‘it is difficult
to give laws on such matters with accuracy.... Of all these matters,
therefore, let the guardians of the laws have cognisance ... and let the
exiles acquiesce in the decisions of such magistrates.’ We cannot, of
course, ignore the main fact given by Homer that Patroclus was compelled
to flee from death because of involuntary or quasi-involuntary homicide.
But Patroclus was an Achaean and we do not associate with the Achaeans
any tendency to discriminate between degrees of guilt. The Achaean system
of military control within a small dominant caste was merely capable of
preventing indefinite retaliations. It was not interested in homicide
as an offence against the stability of social organisations. It had
no homicide tribunals, no elaborate code of penalties. We could not
expect it to manifest any subtle power of delicate discrimination. It
is possible that the military system of historical Sparta was equally
crude in its conceptions of homicide-guilt as it was, apparently, equally
severe in its punishment.[158]

We shall see, later,[159] when we analyse the laws of Plato’s
homicide-code and of the ancient Hebrew code that the distinction between
voluntary and involuntary slaying was much more likely to have arisen in
the tribal customs of village-communities accustomed to the most minute
differentiations in their wergeld system than in systems emanating from
centralised political or religious authority. The Homeric poems give
us, it is true, no reliable evidence which would help us to arrive at a
definite decision on the existence of such a distinction in early Greece,
but from the passages we have cited we may at least extract a suggestion
that the distinction was really appreciated, and we have suggested a
source from which that sentiment may very easily have sprung.


JUSTIFIABLE AND UNJUSTIFIABLE HOMICIDE

We come now to a kindred problem, namely, the question whether the
Pelasgians[160] were aware of a difference between justifiable and
non-justifiable slaying? Most writers will admit that there was no
vengeance set in motion by death on the field of battle. It was a
recognised challenge of strength, an ἄγων, the issue of which was
accepted as the will of the gods. But in local blood-vengeance, arising,
let us suppose, out of failure to pay wergeld, or when the murderer’s
clan defended him at home or did not expel him and feud followed, was
there no distinction between murder and just revenge? Glotz, as we
should expect, holds that there was no distinction between murder and
revenge.[161] ‘Coupable ou non coupable, il est responsable. Qui a versé
du sang doit du sang.’ It is thus, certainly, with modern Montenegrins,
Albanians and others. But are the creators of Mycenaean civilisation to
be compared with these? Glotz conceives the blood-vengeance of early
Greece to be what we have called unrestricted vendetta, but this mode
of vengeance is not usually associated with settled tribal communities
who are otherwise known to accept wergeld, and we maintain that the
Pelasgians had reached this stage at the dawn of Greek history. Glotz
bases his view for the most part[162] on those numerous ‘flights’ of
murderers which Homer records. Now, these references concern murderers,
not avengers of murder; and there is no instance, in Homer, of an avenger
of blood becoming in turn the object of vengeance. The non-Homeric
instances cited by Glotz,[163] such as the trial of Ares for the murder
of Halirrhothius, who had dishonoured his daughter; the flight of Hyettos
from Argos to Orchomenus, after slaying Molouros, who was caught in
adultery with his wife, are derived from Pausanias, Apollodorus, or
Euripides, and are therefore irrelevant for the interpretation of the
Homeric age.

We admit, with Glotz, that in cases of adultery and seduction slaying was
unjustifiable in Homer which would have been justifiable in historical
Greece. Glotz[164] points out that the system of compensation for
adultery and seduction which is found in the laws of Gortyn recalls,
in a certain manner, the custom applied by Hephaestus to Ares in the
_Odyssey_.[165] He says of this system: ‘Nous y retrouvons aussi,
exprimées avec précision, quelques-unes des règles que les coutumes ont
transmises aux législations[166].... Entre la ποινή de Gortyne et celle
de la fin des temps Homériques la ressemblance est frappante.’[167] This
is as much as to say that ‘towards the close of the Homeric epoch’ custom
(or, as we should say, tribal unwritten law) compelled the husband of
an adulterous wife to accept, in certain cases, compensation from the
paramour, and to arrest, but not to slay him. In the _Odyssey_,[168]
Hephaestus, having surprised Ares in the arms of his wife, decides to
imprison them, saying ‘the snare and the bond will hold them till her
sire give back to me the gifts of wooing.’ The other gods, among whom
‘laughter unquenchable arose,’ say that ‘Ares owes the adulterer’s fine’
(μοιχάγρι’ ὀφέλλει). In the _Iliad_[169] the wife of Proetus falsely
accused Bellerophon of attempted adultery,[170] and begged her husband
to slay the offender. But Homer tells us that Proetus feared to slay
him, and sent him forth to Lycia with the famous σήματα λυγρά—a written
injunction to the King of Lycia to put Bellerophon to death—an act
which suggests that the death penalty for adultery was not customary
in Greece.[171] And surely the existence of a prescribed μοιχάγρια
suggests that even amongst the Achaeans the slaying of an adulterer was
unjustifiable. We may further infer that amongst the Pelasgians there
existed some authority, whether tribal tradition, or clan-custom, which
discriminated between the cases in which death could and those in which
it could not be inflicted with impunity. The collective execution of
death in case of refusal to obey clan-laws regarding the payment of
wergeld, or μοιχάγρια, is a clear manifestation of that social justice
which claims the right to decide between justifiable and unjustifiable
slaying.

We cannot, of course, find any evidence in the Homeric poems for a
tabulation of instances of justifiable homicide such as is found in the
laws of Dracon.[172] But the Homeric poems present us with a picture
which is mainly, if not exclusively, Achaean, and we cannot infer from
the absence of Homeric evidence that the Pelasgian tribes which had
developed, as we think,[173] a capacity for discriminating between
degrees of homicide guilt, had not also evolved a definite conception
of the distinction between just and unjust slaying. We shall see[174]
later that even the Achaeans recognised at least a distinction between
murder and just revenge. Thus, the Achaean Orestes who slew his mother
to avenge his father is said by Homer to have ‘gained renown amongst all
men.’[175] In the _Odyssey_,[176] Amphinomus, one of the suitors, refuses
to join a conspiracy to murder Telemachus without consulting the gods:
‘I for one would not choose to kill Telemachus: it is a fearful thing to
slay one of the stock of kings: nay, first let us seek the counsel of
the gods, and if the oracles (θέμιστες) of great Zeus approve, myself I
will slay him and bid all the rest to aid; but if the gods are disposed
to avert it, I bid you, too, refrain.’ The θέμιστες here attributed to
Zeus must be regarded as a reflex of the public opinion of the Achaean
caste, which, therefore, had evolved a distinction between just and
unjust slaying. In another place[177] Eupeithes, the father of a slain
suitor, says ‘It is a scorn if we avenge not ourselves on the slayers of
our sons and brothers; rather would I die!’ It is obvious that an act
which is a duty prescribed by caste or law or custom cannot be regarded
as a crime. So,[178] when the feud arose between Odysseus, who regarded
himself as justified in slaying the suitors who had insulted his family,
and the suitors, who were contriving what they considered a just revenge,
Homer tells us that Odysseus would have slain them all, had not Athene
intervened and ordered both sides to desist and to enter into a solemn
covenant of reconciliation. This act of Athene[179] signifies that in
her opinion both sides are justified in shedding blood, and hence that
the feud can be cancelled without disturbing the balance of justice. Now
Glotz[180] rightly points out that the ancients attributed to their gods
such opinions as they themselves professed; and if Achaeanised Athene
acted thus, how can we avoid assuming the existence of at least as high
a standard amongst the Pelasgians? In Homer then we may conclude that
there existed some distinction between just and unjust slaying. For
Glotz, this distinction arises only when the State takes justice into its
own hands and legitimatises private vengeance after trial. The date of
this evolution, he thinks, is the age of Dracon. But we maintain that,
long before Dracon, or perhaps even before Homer, there existed, in
Greece, States within States, that is, clans and tribes and phratries,
whose interest it was, at the dawn of civilised society, to create the
distinction between justifiable and unjustifiable bloodshed, which is so
vital to domestic peace.


COLLECTIVITY IN VENGEANCE

Nothing that has been said in this chapter is incompatible with the
view that punishment, in early societies, tends to be collective and
hereditary. Feuds of blood must have occasionally occurred amongst
the early Pelasgian folk, but we cannot ignore the control of tribal
authority, and the Achaean domination which may have acted as a check.
However, it is one thing to declare war on a group which refuses to
fulfil the law of a district or of a tribe; it is quite another thing
to refuse the ‘satisfaction’ prescribed by custom, and to make a single
murder an invariable cause of incessant bloodshed. This is the state
of Homeric society as conceived by Glotz, and by most writers on the
subject of early Greek homicide. We prefer to emphasise the triumph of
reason over passion which is symbolised by a wergeld system of local
vengeance, by the worship of common ancestors, real or fictitious,
by the early political synoekism of many Greek districts, and by
international Amphictyonies of immemorial antiquity. We think that it
was in post-Homeric times, when the Achaean control was removed, and
the Migrations broke up the solidarity of Pelasgian clans, that Greek
societies developed unrestricted vendetta. Glotz[181] has difficulties
about the Homeric age. He has to admit that there is no infallible
system of collective punishment in Homer. ‘Dans l’Iliade et dans
l’Odyssée,’ he says, ‘les querelles strictement personnelles ne lient
plus infailliblement au sort de l’offenseur tous les siens. On n’y voit
point, après un meurtre ἐμφύλιος, les vengeurs du sang poursuivre la
famille du meurtrier.’ The difficulty is obviated by our theory of
Achaean restricted vendetta. The vengeance of Achilles[182] for the death
of Patroclus is no objection to our theory, as it is not revenge for
homicide proper: war is distinct from peace. Achaean kings confiscate
property, transfer and destroy whole cities[183]: this is but the
autocracy of a quasi-feudal militarism; it is not a punishment of moral
guilt.

Euripides[184] makes Tyndareus utter a sentiment regarding the legitimate
modes of homicide-vengeance which seems to us to be very applicable to
early Greek societies. Tyndareus objects to the infliction of death as a
penalty for the slaying of Agamemnon, on the ground that such penalties,
in the absence of State-control, would inevitably lead to an indefinite
series of retaliations. ‘Right well,’ he says, ‘did our ancestors in
olden times enact these ordinances ... they punished (the murderer) with
exile, but they suffered no one to slay him in return, for (in that
eventuality) each successive avenger would be liable for bloodshed....
I will support the law, and try to check this brutal murderous practice
destructive alike of individual States and of the world.’ We shall see
later[185] that Euripides is either consciously archaising in this
passage or that the view of Tyndareus was somehow preserved in the legend
which the dramatist follows. In either case, it seems to us to contain
a valuable principle regarding the fear of unrestricted vendetta, of
collective and hereditary punishment, which is found in civilised tribal
societies in a condition of private vengeance. Such societies have either
to abandon civilisation, and to fall back into a chronic state of chaotic
barbarism, or to adopt a system of ‘social justice’ which, by definite
rules and regulations, expressive of tribal authority, by public opinion
and religious sanctions, prevents, as far as possible, the innocent from
suffering with the guilty.

The penalty of wergeld was, in a certain sense, collective because it was
diffused throughout the kindred. But this penalty is clearly far removed
from the collective punishment of a barbarous hypervengeance. It arises,
we have said, from the simple fact that property, in early society, was
to a great extent collective or common; and also from the fact that the
individual of tribal life was not the isolated personality which feudal
and modern civilisations have evolved, but was rather a branch of one
great wide-spreading tree in which he lived and moved and had his being.
Finally, in regard to the Homeric society, we must remember that the
Achaeans stood on quite a separate plane. Amongst them there is little
or no suggestion of collective punishment. Achaean military discipline
prevented it. Such traces of this punishment as are found in many later
legends must be attributed, as we shall see, to post-Homeric influences.


FOOTNOTES

[1] See _Blutrache bei den Griechen_, chapter i.

[2] See _History of Greece_ (second edition), p. 172.

[3] _History of Greece_, vol. ii. p. 32.

[4] See _Manual of Greek Antiquities_, p. 407.

[5] P. 408.

[6] _La Solidarité de la Famille_, Book I. (_passim_).

[7] See _s.v._ φόνος, p. 439.

[8] See _supra_, p. 11.

[9] _Loc. cit._ p. 440.

[10] See, _e.g._, Glotz, _loc. cit._ pp. 56-7: ‘Les Grecs ont toujours
senti et manifesté avec une vivacité extrême le bonheur de se venger.
Le cannibalisme qu’ils avaient pratiqué à l’époque de la sauvagerie
primitive, resta dans leur langue, s’il disparut de leurs mœurs.’ On p.
57 they are compared to Montenegrins and Arabs.

[11] Pp. 253-5.

[12] _Il._ xxiii. 85.

[13] _Il._ ix. 565.

[14] _Il._ xv. 334; _Il._ xxiv. 480.

[15] _Il._ xviii. 490-508.

[16] P. 516.

[17] See also _J.H.S._ xiii. 123-6 (1887). The view was first suggested
by Müncher (1829); see Glotz, p. 116.

[18] See _infra_, p. 37 ff.

[19] See _supra_, p. 21.

[20] _Op. cit._ p. 162 ff.

[21] _Op. cit._ p. 105.

[22] Pott, Corssen, Curtius, quoted by Glotz, _loc. cit._

[23] _E.g._ _Il._ ix. 131-2, ἀπερείσι’ ἄποινα.

[24] _Op. cit._ p. 110.

[25] _Op. cit._ p. 114.

[26] Compare the weeping of Hrethel, when his eldest son was killed
by his second son—and no vengeance was possible within the ‘family.’
_Beowulf_ (2464), quoted by F. Seebohm, p. 63.

[27] _Il._ viii. 500 ff.

[28] _Il._ ix. 378-386.

[29] _Il._ ix. 625.

[30] See _infra_, p. 43.

[31] See _Iliad_ xii. 422 and _supra_, p. 17.

[32] _Op. cit._ p. 115. ‘Rien ne prouve ici que la justice sociale
intervienne à quelque titre et de quelque manière que ce soit, ni pour
imposer ou conseiller un accommodement, ni pour indiquer le montant de la
composition.’

[33] _Il._ ix. 634 suggests an ‘arrangement’ by which either (_a_) exile
absolved the clan from punishment (_cf._ _Laws of King Edmund_, Seebohm,
p. 356) or (_b_) exile was accepted in lieu of the murderer’s _share_ of
the wergeld (_cf._ Canones Wallici, quoted by Seebohm, _op. cit._ p. 109).

[34] See Soph. _Antigone_, 456-7.

[35] _Il._ xviii. 490-508.

[36] _Op. cit._ pp. 473-4.

[37] See his Edition of _Iliad_, vol. ii. pp. 340-1.

[38] See Monro, _loc. cit._

[39] P. 516; _supra_, p. 25.

[40] P. 312.

[41] See also _J.H.S._ xiii. pp. 123-6 (1887), and Glotz, _op. cit._ p.
116.

[42] P. 516.

[43] 490-508.

[44] ἴστωρ, see _infra_, p. 43.

[45] _E.g._ Hofmeister, Leist, Dareste; see Glotz, _loc. cit._

[46] _Op. cit._ p. 116.

[47] P. 312 ff.

[48] For a fine illustration of Achaean ‘arbitration’ in homicide, see
Euripides, _Hecuba_ (1130 ff.).

[49] P. 258.

[50] Minoans or Achaeans.

[51] _Cf._ Glotz, _op. cit._ p. 122. Aussi celui, qui traite au nom d’une
famille lésée, doit avoir pleins pouvoirs d’agir au nom de tous ou en
référer au groupe qu’il représente.

[52] See _Das Attische Recht und Rechtsverfahren_, Einleitung, pp. iv. ff.

[53] That is, if he was proved to be innocent of the crime.

[54] See Leaf’s note in edition of _Iliad_ (1902), p. 611 ff.

[55] _Od._ xv. 388.

[56] _Od._ xv. 429.

[57] _Od._ xv. 452.

[58] _Il._ x. 378.

[59] _Il._ xxi. 41-80.

[60] _Il._ ix. 264.

[61] _Od._ iv. 525.

[62] See _supra_, p. 10; Seebohm, _op. cit._ p. 123 ff.

[63] _Ancient Law_, p. 313. See Leaf, edition of _Iliad_ (1902), p. 612.

[64] _Op. cit._ p. 119.

[65] Seebohm, _op. cit._ pp. 43-5.

[66] See _supra_, p. 11; Seebohm, _op. cit._ pp. 328, 356.

[67] See _supra_, p. 7.

[68] λαοὶ δ’ ἀμφοτέροισιν ἐπήπυον.

[69] ἀμφὶς ἀρωγοί.

[70] κήρυκες δ’ ἄρα λαὸν ἐφήτυον.

[71] Seebohm, _op. cit._ p. 356.

[72] Leaf, edition of _Iliad_ (1902) p. 611; Glotz, _op. cit._ p. 118 ff.

[73] _Op. cit._ p. 118.

[74] Seebohm, _op. cit._ pp. 203-5; 409-11.

[75] _Il._ ix. 634.

[76] _Op. cit._ p. 129.

[77] Glotz, _op. cit._ p. 118.

[78] _Cf._ also _Il._ xxi. 41; _Od._ xv. 388, 452.

[79] _Il._ ii. 666.

[80] _Op. cit._ p. 162.

[81] _Op. cit._ p. 163.

[82] _Op. cit._ p. 29, and Plutarch, _Solon_, 23.

[83] P. 130.

[84] Pp. 164, 173.

[85] iii. 4. 2.

[86] Hesiod, _Theog._ 937.

[87] P. 173.

[88] Apollod. iii. 10. 4. _Cf._ Euripides, _Alcestis_, 1-10.

[89] Apollod. ii. 6. 2.

[90] _Il._ xxi. 442 ff.

[91] The same remark applies to _Od._ xv. 388, 452, where the ‘ransom’
and temporary bondage are connected with kidnapping by pirates.

[92] A murderer’s children are condemned to bondage for two or three
generations in the Salic Law. Seebohm, _op. cit._ p. 164.

[93] _Cf._ the Chrenecruda of Salic Law by which poorer members throw the
burden on the richer. Seebohm, p. 141.

[94] Seebohm, p. 328.

[95] Seebohm, p. 323.

[96] Seebohm, pp. 93-4.

[97] P. 42.

[98] P. 71.

[99] P. 129.

[100] P. 19.

[101] P. 22.

[102] _Op. cit._ pp. 125-126.

[103] Coulanges, _loc. cit._

[104] _Op. cit._ p. 24.

[105] See Bk. II. chap. iii.

[106] Seebohm, _op. cit._ p. 129.

[107] _Il._ ii. 662 ff.

[108] Müller, _Dorians_, i. pp. 411-46.

[109] _Il._ xix. 99 ff.

[110] P. 64.

[111] P. 170.

[112] Glotz, p. 170. See also p. 51.

[113] See Coulanges, _Ancient City_, pp. 169 ff.

[114] For the exile of Amphitryon, father of Hercules, who had slain
Electryon, father of Likymnius, see Euripides, _Her. Fur._ 15 ff. For the
slaying by Hercules of Iphitus, his guest, an act which appears to bring
no punishment save the vengeance of the gods, _cf._ _Od._ xxi. 27.

[115] _Il._ ix. 632 ff.

[116] _Supra_, pp. 32-3.

[117] Seebohm, p. 356.

[118] _Ib._ p. 109; _supra_, p. 9.

[119] _Od._ xxiii. 118-120.

[120] _Od._ xxiii. 133 ff.

[121] _Od._ xxiv. 421 ff.

[122] _Ib._ 526.

[123] _Ib._ 533.

[124] _Ib._ 483.

[125] _Il._ xxiv. 480 ff.

[126] Reading ἀφνειοῦ.

[127] _H. and H._ p. 253.

[128] _Eumenides_, pp. 104-5.

[129] See _infra_, pp. 111 ff., 139 ff.

[130] We should perhaps also add the ‘reminiscence’ in _Il._ ix. 63,
where the lover of domestic strife is said to be a lawless wretch without
home or phratry. It is possible but not necessary to suppose that the
wretch in question was outlawed because of homicidal tendencies which
continued to manifest themselves afterwards. See Leaf, _H. and H._ p.
251. For a possible reference in the phrase ἀτίμηντος μετανάστης (_Il._
ix. 648), see Ridgeway, _J.H.S._ vol. vi.

[131] Caillemer, art. φόνος in Daremberg and Saglio, p. 439; Philippi,
_Areopag und Epheten_, pp. 3-4; Eichhoff, _Blutrache_, chap. i. p. 8.

[132] P. 48.

[133] Glotz, _op. cit._ pp. 164-173.

[134] P. 48.

[135] P. 302.

[136] P. 48.

[137] _Encycl. Laws England_, ed. Renton, vol. ix. p. 32.

[138] P. 128.

[139] _Cf._ the phrase _si telum fugit magis quam iecit_.

[140] Seebohm, p. 126.

[141] P. 71.

[142] Quoted by Seebohm, _op. cit._ p. 63.

[143] Seebohm, _op. cit._ pp. 106-8.

[144] Seebohm, _op. cit._ p. 103.

[145] _Supra_, p. 7.

[146] P. 107.

[147] See _La Monarchie franque_, pp. 473-4 (Glotz, p. 107).

[148] For the contrary view of Dareste in regard to Aryan races, see his
_Études d’histoire du droit_, pp. 252-275. Glotz, p. 106.

[149] xi. 271 ff.

[150] _Phoenissae_, 60 ff.

[151] P. 71.

[152] _Infra_, pp. 171, 310 ff.

[153] _Il._ ix. 563-570.

[154] _Cf._ _Il._ xv. 204 οἶσθ’ ὡς πρεσβυτέροισιν Ἐριννύες αἰὲν ἕπονται.

[155] xxiii. 88 ff.

[156] νήπιος, οὐκ ἐθέλων, ἀμφ’ ἀστραγάλοισι χολωθείς.

[157] See, _e.g._, Eichhoff, _Blutrache_, chap. i. p. 8.

[158] See Xenophon, _Anab._ iv. 8. 25.

[159] See _infra_, pp. 140 f., 197.

[160] For Attic legislation, see _infra_, p. 213 ff.

[161] P. 50.

[162] P. 51; see _infra_, ch. iii.

[163] P. 50.

[164] P. 383.

[165] viii. 318, 332.

[166] _Op. cit._ p. 385.

[167] P. 386

[168] viii. 318 ff.

[169] vi. 160 ff.

[170] For an interesting parallel _cf._ Euripides, _Hippolytus_.

[171] The subsequent solitary wandering of Bellerophon in ‘the plain of
wandering,’ and the death of his sons and daughter through the anger
of the gods, is not presented by Homer as a punishment for an act of
adultery of which he was not guilty (200 ff.).

[172] _Infra_, pp. 193, 215 ff.

[173] _Supra_, p. 55 ff.

[174] _Infra_, p. 76.

[175] _Od._ i. 298 ff.

[176] xvi. 400 ff.

[177] _Od._ xxiv. 420.

[178] _Ib._ 530-555.

[179] See also _Od._ i. 290 ff.

[180] P. 565.

[181] P. 191.

[182] _Il._ xviii. 336, xxiii. 181.

[183] _Supra_, p. 19.

[184] _Orestes_, 500.

[185] _Infra_, p. 348 ff.




CHAPTER III

THE ACHAEAN SYSTEM

    Achaean system explained according to author’s theory: proofs
    from Homeric text: question of discrimination, amongst
    Achaeans, between murder and manslaughter, and between
    justifiable and unjustifiable homicide: no collectivity or
    solidarity in vengeance.


‘The Achaians,’ says Leaf,[1] ‘shew no signs in Homer of anything
corresponding to the minor classifications, so important in later Greece,
which is recalled to us by the Attic names of γένος and φρατρία. They
appear as a single unit divided only locally. The whole primitive family
system, with its rites and taboos, has disappeared and the only kinship
recognised as carrying a moral obligation is the natural obligation of
close blood relationship ... this is only what we should expect in a
people of military adventurers.... Homicide is a local and family affair.’

We have indicated the confusion of ideas which characterises the
traditional views regarding Homeric homicide,[2] a confusion which is
to be attributed to the failure of writers to discriminate between the
Achaeans and the Pelasgians, between the individualistic quasi-feudal
militarism of a dominant caste and the complex tribal organisations of
a settled agricultural subject-people. We have suggested, as the most
probable hypothesis, that the Pelasgian penalty for homicide was normally
and essentially wergeld, except in cases of kin-slaying, for which the
penalty was exile: we have argued that, within the Pelasgian tribe, or
phratry, or village community, exile from his clan or phratry or State
was accepted for the slayer as a complete or partial substitute for his
wergeld debt: and that if the murderer in default of wergeld remained in
his native place beyond a certain time, he could be killed with impunity,
having been previously warned or threatened; we have said that bondage
or servitude might be accepted in case of failure to pay the prescribed
wergeld quota—whether on the part of the murderer himself or on the part
of delinquent relatives—a bondage which was not necessarily perpetual,
but was rather a temporary punishment proportioned to the ‘debt.’ The
Achaean system, we have suggested,[3] was fundamentally different: it was
a restricted ‘small family’ vendetta, in which blood for blood was the
normal retribution, wergeld was unknown, and exile was merely a flight
from death.

This view must now be defended from the text of Homer. In the
_Odyssey_[4] we read that there came as a suppliant to Telemachus, at
Pylos, a murderer from Argos, named Theoclymenus. He was a great-grandson
of Melampus who was a contemporary of Nestor, and the family had been
settled in Argos for four generations.[5] That the family was Achaean is
rendered obvious by the Homeric text.[6] That the victim was probably
a kinsman of the murderer appears from the words ἄνδρα ἔμφυλον.[7] We
pointed out, in the Introduction,[8] how easily relatives could have
accumulated in one or two hundred years, without, however, attaining to
the reality, whatever may be said about the appearance, of a clan. But
the important point to note is that, even in exile, Theoclymenus feared
the death which was desired by those who were at once akin to him and to
his victim. ‘I have fled,’ he says, ‘from my country, for the manslaying
of one of mine own kin; and many brothers and kinsmen of the slain are
in Argos ... and rule mightily over the Achaeans. Wherefore now am I an
exile to shun death and the black fate at their hands.... Set me on board
ship since I supplicate thee in my flight, lest they slay me utterly: for
methinks they follow hard after me.’[9] Nothing could be farther removed
than this from the recognised exile penalty of the wergeld system. The
passage shows, moreover, that the supplication was not an appeal for
homicide-purgation, as Müller would maintain[10]—we shall see later that
this ceremonial was post-Homeric—but was merely an appeal for protection
from the avengers of blood.

A similar supplication is mentioned in a passage in the _Iliad_,[11]
in which we read that ‘Epeigeus, who ruled fair-set Boudeion of old,
when he had slain a good man of his kin, came as suppliant to Peleus and
silver-footed Thetis ... and they sent him to follow with Achilles.’
The locality of Boudeion is unknown.[12] While we cannot argue that
Epeigeus was an Achaean from the fact that he is included amongst the
Myrmidons (after his adoption by Peleus), still we may presume that he
was an Achaean from the behaviour of Peleus and hence we may interpret
his exile as a flight from death. We may therefore infer that death was
the Achaean penalty for kin-slaying. This passage also illustrates the
statement of Leaf[13] that homicide, among Achaeans, brings no disability
other than exile from home. To an ambitious young man ‘exile under such
circumstances is no punishment: a wealthy and generous king can give
opportunities of advancement beyond all the hopes of a narrow family
circle.’ Epeigeus, as Homer tells us,[14] was slain by Hector in battle
before the walls of Troy. His enrolment among the Myrmidons saved him
from the hands of the avengers of blood.

In another passage of the _Iliad_[15] we are told that Medon, son of
Oileus and brother of Ajax, ‘dwelt in Phylace, far from his own country,
for that he had slain a man, the brother of his stepmother Eriopis.’
The murder probably took place in Opus, a Locrian town, where also
was perpetrated the death of the son of Amphidamas at the hands of
Patroclus.[16] Like Patroclus, Medon came to Phthia, not to Peleus the
king of the realm, but only, as Leaf would maintain,[17] to Protesilaus,
a ‘baron’ of Achilles who ruled the town of Phylace. The typically
Achaean method of procedure is maintained.

Again, we are told[18] that Lycophron, son of Mastor, of Cythera, slew
a man in Cythera and came and dwelt with Ajax who made him his ‘squire’
or a member of his bodyguard. He, too, was slain in Troy, and when he
falls Ajax says to his brother Teucer, ‘Our faithful comrade has fallen
... whom we honoured like our parents.’ Leaf[19] quotes this passage as
an instance of the immunity of Achaeans from any real punishment for
bloodshed. So far as tribal customs were concerned such men were entirely
above the law.

In the _Odyssey_,[20] Eumaeus, swineherd of Odysseus, tells how a beggar
appealed to him for help on the ground that he had slain a man, and that
he knew Odysseus (which was a falsehood). From the poverty of the beggar
it is not necessary to infer that he was a Pelasgian who had ‘wandered
over a vast tract of land.’

Again, Odysseus,[21] inventing a fiction about his past, pretends that
he is a murder-refugee from Crete (an Achaean dominion), having killed
the son of Idomeneus. ‘I smote him,’ he says, ‘with a bronze-shod spear
as he came home from the field, lying in ambush for him by the wayside,
with one of my companions.’ He adds, very significantly, as we think:
‘and now I have come hither with these my goods; and I left as much
again to my children.’ There is no trace here of that solidarity in the
control of property, and of that ‘passive collectivity’ or distribution
of punishment, which is so characteristic of clan wergeld. No tribal
murderer could have taken any property away with him: his property, and
therefore probably[22] that of his children, was distributed among the
wider kindred who either retained it or used it to defray their share
of the wergeld.[23] Odysseus, however, departs with half his property,
and the relatives of the slain Orsilochus left the children in tranquil
enjoyment of the rest! Of course, Odysseus did not really live through
such an experience, but a ‘tribesman’ would have told a very different
story.

Again, there is the story of Phoenix,[24] which opens up the question
of parricide. Phoenix did not kill his father, but it occurred to him
to do so, because his father cursed him with sterility, for having
had amorous relations with one of his father’s concubines. Fearing to
commit the dread deed of parricide, he decided to leave his home. His
relatives and comrades endeavoured to dissuade him, holding a feast in
his house for nine days, but on the tenth he fled. He went from Hellas to
Phthia, to King Peleus, who made him king over the Dolopians. A portion
of this passage[25] has been considered spurious by many editors, as
it is not found in any Homeric manuscript, and Aristarchus is said by
Plutarch to have omitted it, as being unsuitable to the character of
Phoenix[26]; Glotz[27] holds that the feast in question was a kind of
gathering of the clan. The father, he thinks, wished to banish the son,
but could not do so without the solemn and formal ratification of the
assembled clan. He says of Amyntor,[28] the father of Phoenix: ‘Comme
Thésée, il a maudit son fils: s’il ne le bannit pas, comme Thésée, c’est
qu’il a besoin d’obtenir le consentement du γένος.’ Now Euripides[29]
in describing the curse which Theseus pronounced against his son,
Hippolytus, whom he believed to be the real though not the actual cause
of the death of his wife Phaedra the step-mother of Hippolytus, tells
us also that Theseus commanded Hippolytus to depart from Troizen and
forbade him ever to reside at Athens.[30] This sentence was pronounced
without any consultation with the clans of tribal Attica, because
Theseus, in the legends, is erroneously presented as an autocratic ruler,
like Peisistratus, rather than as a tribal chieftain. But Amyntor was
an Achaean, and we have argued that the Achaeans did not acknowledge
or recognise clan-jurisdiction. Hence, a comparison of Amyntor with
the legendary Theseus is logically valid but does not justify Glotz’s
conclusions. Moreover, if it had been the desire of Amyntor to secure a
formal decree from the clan for the expulsion of his son, why should the
‘clan’ have guarded Phoenix as if he were a prisoner? Surely it would
have been sufficient to obtain a decree of banishment after the offender
had fled. On this point, Glotz does not seem quite clear. ‘Sans doute,’
he says, ‘tous ses parents montent la garde autour de Phoenix de peur
qu’il ne s’échappe. Mais ce n’est pas pour cela qu’ils sont venus. Ils
sont venus sur convocation.’ But we can find no suggestion, in Homer,
that the kinsmen were summoned by Amyntor to agree to a sentence of
banishment for his son. We are told quite plainly that Amyntor and his
son were exceedingly angry with each other, so much so that Phoenix
contemplated parricide, and would have killed his father had not some of
the immortals reminded him of the unpleasant reputation which the act
would bring him.[31] Owing to his father’s curse, he looked forward to a
childless old age. He tells us that he decided to leave his home.[32] For
an Achaean such an exile involved no serious hardship, but might, on the
contrary, have brought many advantages. His relatives came, as we think,
to entreat and restrain him.[33] They ‘imprisoned’ him, or rather they
sought to prevent his escape, in the hope that the feast would reconcile
the father and the son. Can we imagine a group of clan-kindred, with
a right of inheritance to the property of Phoenix, so very anxious to
restrain him? We fear they would rather have celebrated his departure!
But Homer makes no mention of clan-kindred. The ἔται and the ἀνεψιοί are
the ordinary ‘comrades and cousins’ of the Achaean ‘small family circle’:
the whole context supports the hypothesis of Leaf, of which Glotz is
unaware, namely that the Achaeans of Homer lived in an atmosphere which
is foreign to the clan.

The question remains: what was the consequential penalty which helped
to deter the Achaean Phoenix, who had otherwise little regard for his
father, from actually slaying him? We have seen[34] that kin-slaying,
and therefore parricide, was punished by exile in the tribal system. How
would it have been punished within the Achaean caste? We have little
Homeric evidence to guide us here. Homicide amongst the Achaeans is a
private affair which concerns a small family circle. In the _Iliad_[35]
the Trojan Akamas says that it is desirable for a man to pray that ‘some
kinsman be left in his home to avenge his fall.’ If Akamas avenges
the slaying of his brother even in war, will a son not avenge the
slaying of a father? Does not Orestes avenge the murder of his father,
Agamemnon, even when that vengeance necessitates the shedding of his
mother’s blood? Homer implies that Clytaemnestra was the murderer of
Agamemnon and also of Cassandra[36]: he also implies that she was slain
by her son Orestes.[37] Glotz[38] regards such vengeance as perfectly
normal: ‘Loin d’être impossible,’ he says, ‘la repression des crimes
commis par un parent contre un parent est plus certaine et plus sévère
que la réparation des dommages causés par une famille à une autre.
Si l’offenseur ... est parent de la victime ses auxiliaires naturels
deviennent ses ennemis. Seul, il a contre lui l’univers.’ Hence it is
probable that the ἔται and the ἀνεψιοί who were so anxious to heal the
feud between Amyntor and his son[39] would have been equally anxious to
avenge Amyntor if he had been slain by Phoenix. They would have put the
parricide to death.

The portion of the Homeric story of Phoenix which is generally regarded
as spurious[40] happens to be the passage in which parricide is referred
to in a casual and frivolous manner. Plutarch states that such a
reference was considered unsuitable to the character of Phoenix. We will
go further and say that it is unsuitable to the ancient Greek conception
of parricide, whether among the Achaeans, or, _a fortiori_, among the
clans. This latter point will become more evident when we discuss the
laws of Plato and the legends of the Attic tragedians. Our theory of the
Achaean penalty for homicide must now seek further confirmation from a
discussion of other Homeric passages.

In the _Iliad_[41] Phoenix tells Achilles the story of Meleager, son
of Oeneus, King of Calydon, pointing out how he refused to fight for
his people during a war between the Calydonians and the Curetes. The
cause of his refusal was his indignation at the curse which his mother,
Althaea, had launched against him because he had slain her brother, a
prince of the Curetes, in the war. Homer, of course, does not mention
the story which later legends contain, of the fateful brand, and the
death of Meleager when the brand was burned by his mother.[42] But
from the entreaties of his father, Oeneus, of his sisters, and even
of his mother,[43] and from the presents which were offered to him by
the priests and the elders of the Aetolians,[44] in the hope that he
would lay aside his anger and continue to fight for the Calydonians, we
may infer that he was not regarded in Homeric times as a kin-slayer of
certain guilt. His own anger, too, indicates what the Homeric facts would
seem to imply, that the slaying of his mother’s brother was in his own
opinion justifiable as an act of war.[45]

When, in later times, the Roman poet Ovid makes Althaea say, as the
Achaean avenger of a brother’s death would naturally say, _mors morte
pianda est_, he implies, what the Homeric story of the ‘curse’ compels
us to assume, that Althaea regarded her brother’s death as culpable
kin-slaying, which required atonement. The curse of Althaea indicates her
conviction that the death of Thestius was a crime and also her inability
to avenge it at the time. But, in the general opinion, there was a doubt
about the guilt of Meleager, and Meleager was sufficiently important to
get the benefit of the doubt. There are, then, two conclusions which
may be indirectly derived from this passage: (_a_) that kin-slaying,
within the Achaean caste, was regarded as a crime which merited serious
punishment, such as death; and (_b_) that the distinction between
justifiable and unjustifiable slaying was in certain circumstances
admitted and upheld by the Achaeans.[46]

Our next quotation has reference to Tydeus, the brother of Meleager.
Homer[47] tells us that Tydeus left his native Calydon, and ‘roaming
thence settled at Argos, (for thus did Zeus and other gods decree,)
and married there a daughter of Adrastus.’ In this connexion Leaf[48]
points out that ‘Homer does not tell of any actual homicide, yet the
picture he gives of the family feuds in Tydeus’ time is such as to make
family bloodshed far from improbable.’ From later legends[49] we learn
what Homer has not mentioned, namely, that Tydeus was a kin-slayer. We
know that Tydeus was an Achaean, and his action in fleeing from Calydon
and settling at Argos was a typical Achaean procedure. His ‘exile’ was
really a flight from death, and such a flight suggests that even in the
case of kin-slaying the Achaeans, unlike the Pelasgians, did not accept
‘exile’ as a penalty for bloodshed. This has already been demonstrated in
connexion with the flight of Theoclymenus.[50] The alliance of Tydeus,
by marriage, with Adrastus, King of Argos, helped to preclude the
possibility of blood-vengeance at the hands of Calydonian avengers.

A clear and cogent illustration of the Achaean system of avenging
bloodshed is to be found in the punishment inflicted by Orestes on
his mother and her paramour in revenge for the slaying of Agamemnon.
It is not of course a matter of absolute certainty that Orestes slew
his mother or that she slew her husband, in the Homeric story, but
it can, we think, be inferred with the greatest probability. Homer
says[51] that, after the Trojan war, Menelaus wandered about with his
ships ‘amongst men of strange speech’ for seven years: that meanwhile
‘Aegisthus planned baneful deeds at home: and for seven years ruled
over rich Mycenae, having wrought the death of the son of Atreus, and
subdued unto himself the people: but in the eighth year goodly Orestes
came back from Athens as a retribution and slew the man guilty of his
father’s blood (πατροφονῆα), Aegisthus of crafty counsel, who had wrought
his father’s death. Now when he had slain him, he held a funeral feast
with the Argives for his hateful mother and for Aegisthus powerless in
defence (ἀνάλκιδος).’ In this rendering of the text, we have deliberately
avoided translating κτείνειν as ‘to slay,’ since it can also mean ‘to
seek to slay’[52] or, which is almost equivalent, ‘to plot the death
of.’ From the point of view of homicide-guilt and retribution, the
plotter and the perpetrator were probably equally culpable whether in
the Homeric epoch or in historical times.[53] Hence it is that in other
passages Homer presents Clytaemnestra as the plotter and Aegisthus
as the executor. In both cases, of course, the guilt of bloodshed is
aggravated by the additional stigma of adultery. In the _Odyssey_[54]
Zeus tells how he warned Aegisthus not to kill Agamemnon or to woo his
wife, for Agamemnon would be avenged by Orestes. Again,[55] we are told
that Aegisthus brought Clytaemnestra to his house—‘a willing lover and a
willing lady.’ In another passage[56] we hear of the famous scout whom
Aegisthus placed in a tower, to watch for the homecoming of Agamemnon.
This scout had been watching for the space of a year[57] when Agamemnon
arrived. Immediately upon his arrival, he accepted an invitation to a
feast in the house of Aegisthus, who had prepared an ambush to destroy
him in the event of his refusal.[58] After the feast he was slain ‘as
one slayeth an ox at the stall’; but not without a struggle. ‘None
of the “companions” of the son of Atreus who attended him survived,
nor any of the “companions” of Aegisthus, but they were slain in the
house.’[59] We have pointed out that Clytaemnestra was living in this
house with her paramour. The reference to the time of the deed—‘after the
feast’—and to the manner of the slaying—‘as one slayeth an ox’—suggests
the use of the axe and the fatal bath of Agamemnon which has been made
so familiar by the Attic tragedians. We are definitely informed[60]
that Clytaemnestra was an active agent in the terrible bloodshed which
took place. The ghost of Agamemnon speaking to Odysseus in Hades says:
‘Aegisthus contrived my death and doom and slew me, aided by my accursed
wife ... most pitiful of all I heard was the voice of Cassandra, daughter
of Priam, whom, close to me, the guileful Clytaemnestra slew. As I was
dying I strove to raise my hands to avert (or grasp)[61] the sword, but
let them fall to the ground again, and that shameless woman turned her
back, nor could she bring herself, even when I was going to the house
of Hades, to close my eyes or my mouth with her hands! Surely there is
nought more horrible and shameless than a woman since she planned a foul
deed, and wrought the death of her wedded lord.’ Aeschylus, then, as
we think, has kept very closely to the Homeric narrative, when, in the
_Agamemnon_, he makes Clytaemnestra the actual slayer of her husband,
and represents Aegisthus as concerning himself only with an ambush and
a battle against the retainers of Agamemnon. In Homer, Aegisthus and
Clytaemnestra were equally guilty. Orestes, therefore, slays them both,
and gains renown among all men.[62] In the clan-system, Aegisthus, a
first cousin of Agamemnon, would not have been slain, if he had gone
into exile, nor would wergeld have been payable, as he was akin to the
victim. Clytaemnestra’s kindred might have compensated the crime by a
wergeld paid to the kindred of Agamemnon. How strange it seems that
the children of Aegisthus would have received a share! In historical
Athens, Aegisthus would most probably have been put to death without
the option of exile, since he was a kin-slayer, while Clytaemnestra
could have gone into exile on the second day of the trial.[63] To
the minds of post-Homeric legend-makers it would have been necessary
for Orestes,[64] if he wished to be unimpeachably correct, to obtain
authority from the war-council of the chieftains, as Menelaus did in
the case of Helen[65]; but in Homer Orestes is the natural avenger of
a crime which would otherwise have gone unpunished. The slaying of
Aegisthus and Clytaemnestra was not murder, but just revenge, so far as
that distinction was admitted and sanctioned by the traditions and public
opinion of the Achaean caste. If there had been any tendency to revolt at
the abhorrent nature of Orestes’ act in slaying two of his kindred—one
of them the dearest of kin—this feeling would have perished on the
recollection that Aegisthus and Clytaemnestra were not only murderers
but adulterers. We find evidence of a strong public opinion against this
twofold moral stigma in Homer. In the _Odyssey_,[66] for instance, Athene
urges Telemachus to slay the suitors and quotes the act of Orestes as a
parallel. The point of the comparison lies in the suggestion of adultery
which attaches to the presence of the suitors in the home of Odysseus.
‘Hast thou not heard,’ says Athene, ‘what renown the goodly Orestes gat
him among all men in that he slew the slayer of his father?... thou, too,
my friend ... be valiant, that even men unborn will praise thee.’ But as
we have elsewhere argued[67] that adultery alone would not justify, in
private vengeance, the death of the offender, we must conclude that the
justification for Orestes’ act consisted essentially in the fact that
he avenged the murder of his father. From this episode we may, then,
also conclude that the Achaeans, in certain circumstances, admitted the
distinction between justified and unjustified homicide.[68]

We have now adduced sufficient evidence from the Homeric poems to
justify the theory which we have propounded as to the nature of Achaean
blood-vengeance, and to illustrate the contrast which it is necessary
to make between the attitude to homicide adopted by a temporary
dominant caste of a military quasi-feudal type and that of the tribal
village communities in which we believe the Pelasgian subject-race to
have lived. It remains for us to conclude this chapter by some brief
remarks on certain questions which we have already raised and partly
answered: _e.g._, whether there existed, in the Achaean caste, (_a_)
the distinction between murder and manslaughter, (_b_) the distinction
between justified and unjustified slaying, (_c_) the practice of
collective and hereditary vendetta.

In regard to the first question, we have argued[69] that a legend as
old as Homer must have presented as ‘involuntary’ the slaying of Laius
by Oedipus. By this we mean that Oedipus neither intended to kill the
old man whom he met at the ‘crossing of the three roads,’ nor was aware
that the man whom he slew was his father. If we now assume that the
Achaeans recognised no distinction between voluntary and involuntary
slaying, and that Homer lived in such an atmosphere, though the language
and the social system of the Pelasgian people who lived around him
were familiar with this distinction, we can more easily understand the
astonishment which the poet seems to feel at the sojourn of Oedipus at
Thebes after the gods ‘made known these things to men.’ We can also, on
this assumption, more easily explain[70] the protest which is implicit
in the words of the dead Patroclus to Achilles when he describes his
flight from death ‘on the day when’ he slew the son of Amphidamas, ‘being
a mere stripling and not intending (to kill) and being angered over
(a game of) dice.’ If we add to these probabilities the fact that the
Achaeans were men of a proud and haughty spirit, men of quick passions,
and accustomed to bloodshed, men who knew no restraint beyond that of
a temporary military discipline, and no fear of any greater punishment
than that of expulsion from a fortress or from the councils of a military
clique, we shall conclude that the distinction between voluntary and
involuntary slaying was not recognised by the Achaeans. Such a conclusion
incidentally explains the general view of modern scholars[71] that in the
Homeric epoch no such distinction was admissible.

In regard to the second question, concerning the distinction between
just and unjust slaying amongst the Achaeans, we have indicated some
evidence for this distinction in the public approval which greeted the
vengeance of Orestes,[72] in the sentiments of the Aetolians concerning
Meleager,[73] in the scruples felt by one of the suitors in regard to
a conspiracy against the life of Telemachus,[74] in the approval given
by Eupeithes,[75] and also, apparently, by the goddess Athene,[75] to
the vengeance plotted for the slaying of the suitors. A distinction
between the indiscriminate slaying of enemies which was permitted in
war and the personal vendetta which was restricted to the person of the
murderer, in peace, is illustrated by the contrast with normal modes of
vengeance exhibited by the act of Akamas who avenged his brother’s death
on Promachos, and not on Ajax, the actual slayer.[76] Pausanias[77] says
that before the time of Theseus, and the establishment of the Delphinium
court, there was no distinction between just and unjust slaying, and
that ‘every manslayer had to flee for his life.’ This statement does
not altogether harmonise with our conception of Homeric Greece. It does
not take into account the control of Pelasgian tribes and the influence
of public opinion amongst the Achaeans. His remarks are, we think, much
more appropriate to the post-Homeric period when society was in a state
of disintegration. Yet in regard to the Achaeans, we must point out that
their sentiments or ideals of vengeance may not always have coincided
with their acts. The arbitrariness of military control, the presence
of subjects outside the caste, the necessity felt by the Achaeans of
supporting their own side in every dispute, make the period of their
domination an epoch to which the words of Pausanias are not entirely
inapplicable.

Finally, if one asks whether the Achaeans practised a collective and
hereditary vendetta, we may reply that the nature of the Achaean system
of life, their consciousness of the paucity of their numbers in the midst
of potentially hostile people, would have hindered any tendency to such
a practice within the Achaean caste. An insult inflicted from without
provoked, of course, the most savage retaliation. ‘Frightfulness,’ no
less than military skill and strategic control, was one of the pillars
of the Achaean fabric of power. But we have seen how Athene interfered
to prevent the Achaean feud in the realm of Odysseus; in this rôle of
peace-maker she may be regarded as a symbol of the restraining influence
of military discipline and group-consciousness amongst the Achaeans.
From certain passages in Homer,[78] in which there appears a kind of
proverb, namely that a man is lucky to have a son or brother to avenge
his fall, we may conclude that the danger of collective hypervengeance
occurring amongst the Achaeans was much less probable than the danger of
not being avenged at all. Similarly, in the _Odyssey_[79] we are told
that an Achaean murderer had no fear that vengeance would fall upon his
children. Thus, it is only in post-Homeric times, we think, that the
Greeks lapsed into savagery and practised on a large scale a collective
and hereditary vendetta. This will be still more manifest when we come to
give an account of the Hesiodic society. From such a state of chaos the
Greeks were saved by the seventh-century Apolline doctrine of pollution,
which we shall describe in our Second Book, and also by the evolution
of democratic civic government. When the State assumed responsibility
for the trial and execution of criminals, including murderers, the lust
of vengeance was gradually subdued. But all the more must we admire the
comparative absence of collective and hereditary vendetta in the Homeric
epoch, when, for Achaeans as well as for Pelasgians, the execution of
vengeance devolved upon the relatives of the slain.


FOOTNOTES

[1] _H. and H._ pp. 251-253.

[2] _Supra_, chap. ii. pp. 21-6.

[3] _Supra_, p. 27.

[4] xv. 224, 273-278.

[5] _Supra_, p. 21.

[6] μέγα δὲ κρατέουσιν Ἀχαιῶν.

[7] 273.

[8] _Supra_, p. 21.

[9] From the translation by Butcher and Lang.

[10] See _Eumenides_, p. 109.

[11] xvi. 511.

[12] Leaf, _H. and H._ p. 254.

[13] P. 253.

[14] _Il._ xvi. 570.

[15] xiii. 696; xv. 336.

[16] _Il._ xxiii. 88.

[17] _Op. cit._ pp. 125, 128, 135, 254.

[18] _Il._ xv. 430 ff.

[19] _H. and H._ pp. 254-5.

[20] xiv. 380.

[21] _Od._ xiii. 258.

[22] See Seebohm, pp. 129-130.

[23] See _supra_, p. 9; Seebohm, pp. 109, 356.

[24] _Il._ ix. 450-480.

[25] 458-461.

[26] See Monro’s _Iliad_, vol. i. p. 349.

[27] Pp. 43, 44.

[28] P. 44.

[29] _Hippolytus_, 890 ff.

[30] _Ib._ 970 ff.

[31] 460.

[32] 463.

[33] 465.

[34] _Supra_, pp. 9, 47 f.

[35] xiv. 484.

[36] _Od._ xi. 410-23.

[37] _Od._ iii. 310; _infra_, p. 72 ff.

[38] P. 45.

[39] _Il._ ix. 465 ff.

[40] 458-462.

[41] ix. 550 ff.

[42] Pausanias, x. 31. 2; Ovid, _Met._ viii. 450, 531.

[43] 581 ff.

[44] 575 ff.

[45] The conflict between the Calydonians and the Curetes (another
Aetolian people) had arisen over the body of the famous boar.

[46] _Supra_, p. 58 ff.; _infra_, p. 76.

[47] _Il._ xiv. 119 ff.

[48] _H. and H._ p. 254.

[49] See Smith, _Dict. Biog. and Myth._ _s.v._ Tydeus.

[50] _Supra_, p. 65.

[51] _Od._ iii. 300 ff.

[52] See _Od._ ix. 408.

[53] _Infra_, p. 223 ff.

[54] i. 35 ff.

[55] _Od._ iii. 263 ff.

[56] _Od._ iv. 524 ff.; _cf._ Aeschylus, _Agamemnon_, 1 ff.

[57] 526.

[58] _Od._ iv. 530 ff.

[59] 536-7.

[60] _Od._ xi. 409 ff.

[61] I take περὶ φασγάνῳ with χεῖρας ἀείρων rather than with ἀποθνῄσκων.
Butcher and Lang render: ‘I strove to raise my hands as I was dying upon
the sword, but to earth they fell.’

[62] _Od._ i. 288.

[63] _Infra_, pp. 218, 236 ff., 239.

[64] See Eur. _Or._ 500.

[65] Euripides, _Troades_, 900 ff.

[66] i. 298 ff.

[67] _Supra_, p. 59.

[68] _Supra_, p. 60.

[69] _Supra_, p. 55.

[70] _Supra_, p. 56.

[71] _E.g._ Glotz, p. 48; Eichhoff, _Blutrache_, chap. i.

[72] _Supra_, p. 60.

[73] _Supra_, p. 70.

[74] _Supra_, p. 60.

[75] _Supra_, p. 60.

[76] _Il._ xiv. 480 ff.

[77] i. 28.

[78] _Od._ iii. 196; _Il._ xiv. 480.

[79] xiii. 258.




CHAPTER IV

JUDICIAL ASPECT OF HOMICIDE IN EARLY GREECE

    Current views criticised: author’s theory based on distinction
    between Achaean and Pelasgian societies: arguments from
    survivals in historical times: meaning of δικασπόλοι βασιλῆες:
    the Trial-Scene in the Homeric Shield of Achilles: origin of
    trials for homicide.


In discussing the trial-scene which is found in Homer’s description of
the Shield of Achilles,[1] we were compelled incidentally to give, in
anticipation, the main results of our inquiries as to the existence, in
Homeric Greece, of tribunals for the trial of homicide. Previous writers
on the subject, who are unaware of the differences in the organisation
and nature of Pelasgian and Achaean societies, have naturally maintained
that homicide in early Greece was entirely a ‘private’ affair and
that trials for homicide only arose when a post-Homeric conception of
murder as a ‘pollution’ compelled an investigation on the part of kings
and nobles who were anxious to avert the wrath of the gods. Thus Bury
says[2]: ‘This notion of manslaughter [_i.e._ homicide] as a religious
offence necessarily led to the interference of the State. For when the
member of a community was impure, the stain drew down the anger of the
gods upon the whole community, if the unclean were not driven out.
Hence it came about that the State undertook the conduct of criminal
justice.’ Jevons[3] propounds a similar view, though he apparently finds
more difficulties in the Homeric text. ‘There was, indeed,’ he says,
‘no State power to which the relatives of the deceased could appeal for
redress, much less was there any State power which of its own motion
undertook to apprehend and punish the murderer. But in Homeric times a
feeling was gathering that murder was an offence against the members of
the community in their collective capacity.’ Bury’s general view-point
is that homicide was the only crime which called for State interference,
and that there was no such interference before the doctrine of pollution
arose. Other ‘crimes,’ he thinks, continued to be ‘private’ affairs
until the centralisation of government brought it about that the injured
party, before punishing the offenders, had to seek State authorisation
in the form of trial, but in such cases the State never acted on its own
initiative or responsibility. ‘It must be borne in mind,’ he says,[4]
‘that, in old days, deeds which injured only the individual and did not
touch the gods or the State were left to the injured person to deal with
as he chose or could. The State did not interfere. Even in the case of
blood-shedding it devolved upon the kinsfolk of the slain man to wreak
punishment upon the slayer. Then, as social order developed along with
centralisation, the State took justice partly into its own hands: and the
injured man, before he could punish the wrong-doer, was obliged to charge
him before a judge, who decided the punishment. But it must be noted
that no crime could come before a judge unless the injured person came
forward as accuser. The case of blood-shedding was exceptional, owing
to the religious ideas connected with it. It was felt that the shedder
of blood was not only impure himself, but had also defiled the gods of
the community: so that, as a consequence of this theory, manslaughter of
every form came under the class of crimes against the religion of the
State.’ Bury does not define precisely the time at which homicide became
a religious offence, but from this and other references we assume that
he regarded the period as post-Homeric. Thus he says[5]: ‘According to
early custom which we find reflected in Homer, murder and manslaughter
were not regarded as crimes against the State, but concerned exclusively
the family of the slain man.... But gradually, as the worship of the
souls of the dead and the deities of the underworld developed, the belief
gained ground that he who shed blood was impure and needed cleansing....
This notion of manslaughter as a religious offence necessarily led to
the interference of the State.’ We admit, of course, that there could
not have been State trial before the State came into being; but the
notion that there were no ‘trials’ before the days of ‘State trial’ is,
we think, one of the delusions which modern minds have derived from the
legacy of feudalism. Bury admits the existence of religious courts before
the period of State courts, but he apparently forgets the courts of the
clan, of the phratry, and of the tribe.

It is frequently suggested that the right of sanctuary is the ultimate
origin of the trials and negotiations which came to be associated with
homicide. ‘Among the Greeks,’ says Gilbert,[6] ‘when blood was shed,
the relatives of the murdered man usually set themselves to wreak
vengeance on the murderer. If he did not quit the country immediately, he
could only secure himself by taking refuge in a sanctuary until he had
made compensation to the relatives of his victim. From his sanctuary,
protected by the right of asylum, he could enter into negotiations with
them as to what compensation must be paid. When the State took into its
own hands the regulation of vengeance for bloodshed, it respected the
right of sanctuary in so far that the three places[7] of trial were
connected with three sanctuaries.’ Now we can find no evidence for the
operation of a right of sanctuary in Homer. Hence this theory of Gilbert
would compel us to believe that not only murder trials but even wergeld
payments were of post-Homeric origin!

Glotz,[8] in a passage which we have already quoted, refuses to see in
the subjugation of blood-lust which is involved in the acceptance of
wergeld, any suggestion of the interference of ‘social justice,’ whether
to impose or advise a settlement, or to fix the amount of compensation.
He holds, moreover, that in no case is exile authorised: that it is
always a flight from the natural penalty, which is death. ‘L’exil,’ he
says, ‘dans ces conditions, n’est pour le meurtrier ni une peine ni un
droit, mais une mesure de prudence ... on ne peut obtenir l’autorisation
de s’en aller tranquillement ni de revenir jamais.’[9] It is only, he
implies,[10] when the idea of pollution abolished the arbitrary nature
of State jurisdiction that the offended party was forced by public
opinion to accept the customary wergeld. It is only then that a person
wrongly accused could appeal to judges who must hear the case. Thus
he says: ‘C’est un fait assez fréquent dans l’histoire qu’à l’origine
de la législation sociale il y ait une révolution religieuse ... mais
la révolution qui en résulta fut diffuse. Elle ne fut personifiée que
par un dieu. Vers les temps où la Grèce commence à se purifier et à
demander au ciel un supplément de justice pour la terre, elle voit sur
son horizon rayonner d’une lumière inconnue le sévère et doux guérisseur
du mal et de la souillure, Apollon.... Il exige que tout crime soit expié
et s’en prend au peuple qui manque à ce devoir.... L’expiation, il la
fait consister, chaque fois qu’il peut, à élever un sanctuaire: par là
il donne aux dieux leur part de la ποινή et aux juges la première idée
de l’amende, en même temps qu’il multiplie les lieux d’asile et fait
servir l’homicide même à sauver des vies humaines.... Tandis que le
droit religieux absorbait la plus grande partie de la θέμις familiale
pour la transmettre à la δίκη sociale, la juridiction de l’Etat perdait
son caractère d’arbitrage.... Sous la pression de l’opinion publique
... l’offense fut tenu de plus en plus strictement d’accepter une
transaction aux conditions modérées de la coutume ... l’offenseur qui
trouvait exorbitantes les exigences de l’offensée put rejeter une αἴδεσις
trop onéreuse: l’innocent qui ne croyait devoir aucun dédommagement
put refuser le paiement d’une ποινή injuste, sans craindre la mort ou
l’exil.... Le recours en justice, de facultatif qu’il était, devint
obligatoire par sa fréquence même. A ce moment, le tribunal des gérontes,
sentant son pouvoir plus ferme, franchit par un empiètement fatal et
naturel les limites étroites où sa compétence était primitivement
circonscrite.... La juridiction criminelle est créée.’

We shall see later[11] how impossible it was that wergeld could have
continued to exist in days when the murderer was polluted. We admit that
the Apolline murder-code did absorb much of the clan-customs in regard to
homicide (_la θέμις familiale_). But from the account which we have given
of the wergeld system,[12] it must be obvious how very non-arbitrary
was the jurisdiction of the clans. In our view, 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.[13] The
court of Elders, to which Homer refers in his description of the Shield
of Achilles, was, in our opinion, a city-state court. We may call it
merely a city court if we wish to retain the word ‘State’ to denote a
political unit exercising authority over a substantial territorial area,
and it is in this sense that the word ‘State’ is generally used: but F.
de Coulanges has shown that the difference between the ancient ‘city’
and a ‘State’ was one of degree, not of kind. The ancient ‘phratry’
was, he says,[14] ‘a small society modelled on the family.’ Maine,[15]
speaking of the primitive Indian Village Community, says: ‘The Community
is more than a brotherhood of relatives and more than an association
of partners. It is an organised society, and besides providing for the
management of the common fund, it seldom fails to provide, by a complete
staff of functionaries, for internal government, for police, for the
administration of justice, and for the apportionment of taxes and public
duties.’ So, we think, the court which Homer describes had the highest
jurisdiction in all matters of serious dispute, whether within the city
proper or in rural areas which were politically united with the city.
The elders of the trial-scene were, we think, tribal chieftains, like
the Attic tribe-kings (φυλοβασιλεῖς), and their main function was to
arbitrate, but with full authority, in cases of dispute between people
of different clans or phratries. Inside the clan, and probably inside
the phratry (a group of neighbouring clans), similar assemblies of
interested and responsible persons would have decided disputes between
members of their associations. The only judicial change which synoekism
and the growth of State-power involved was, therefore, an extension of
the area of jurisdiction, and an increase in the number of people who
had the right, if not the duty, of referring their disputes to a common
authority. But this new central court of justice was neither incompatible
with, nor destructive of, the more primitive local courts. Coulanges[16]
maintains that Plutarch and Thucydides are wrong in the assertion that
Theseus abolished the local magistracies of Attica. Gilbert[17] admits
that the Attic tribe-kings still functioned as judges in inter-tribal
disputes, in historical Athens. It is quite possible that, in early
times, there was no right of appeal outside the tribal court for members
of the same tribe. There is a law[18] of an Anglo-Saxon king of tribal
England which decrees: ‘Let no man apply to the king unless he may not be
entitled to justice within his “hundred.”’

The judicial system of the Homeric epoch is complicated by the presence
of the quasi-feudal Achaeans, who sometimes hear appeals in cases of
‘petty family disputes’ among the natives, but who, amongst themselves,
obeyed the short and swift decrees of military courts or councils of war.
We have said[19] that there is a suggestion of Achaean arbitration in
the Euripidean legend in which Hecuba appeals to Agamemnon to justify,
after the event, her punishment of Polymestor, the slayer of her son.[20]
Assuming the view of Leaf[21] that the Achaeans did not interfere with
the ‘group-system’ of the Pelasgians, we may for the moment ignore the
presence of the Achaeans, though it is the predominance of that caste in
Homer which has misled modern scholars in their opinions of the early
Greek judicial system. We shall now examine some interesting survivals
of clan-courts in the days of Plato and Demosthenes, so that we may
realise more clearly the nature and the functions of the local courts of
the ‘group system,’ courts which Homer almost ignores, which he would,
perhaps, have entirely omitted to mention, if the Pelasgian craftsmen who
fashioned the ‘Shield of Achilles’ had not engraved upon the Shield a
picture of a Pelasgian Court of Elders, which was a familiar event in the
everyday life of the cities and tribes of the subject-race.


HISTORICAL SURVIVALS OF CLAN COURTS

The first instance of ‘survival’ which we shall cite is mentioned by
Glotz,[22] and in justice to him we must point out that we differ from
him, not in regard to the question of the existence of clan-courts, but
in regard to the nature of their judicial functions in the matter of
homicide. Glotz is not aware of the distinction between the Pelasgians
and the Achaeans, or of the importance of the group system in the
Pelasgian civilisation. He admits that there existed within the clan
a regular tribunal, composed of heads of families, who consulted and
decreed, with absolute authority, on all matters affecting property, such
as adoption, inheritance, expulsion, and marriage. He quotes Plato[23]
for a procedure which, he presumes, was a general characteristic of the
clans. We have seen that homicide, in default of wergeld, was commonly
punished by exile or banishment. The following is Plato’s description
of an expulsion from the clan: ‘For him upon whom there has come a
desire, by no means fortunate, whether just or not, to release from
relationship to himself one whom he has begotten and brought up, let
it not be lawful to do this upon slight grounds or without delay; let
him first bring together his own relations as far as his cousins, and
also those of his son on the mother’s side, and let him accuse his son
before them and prove that he deserves completely to be expelled from
the family—and let him allow his son to prove equally that he does not
deserve to suffer anything of the kind; and if the father can persuade
and secure the votes of more than half all the relations (father, mother,
son, and minors not voting),[24] then let it be lawful for the father
to renounce his son: but otherwise not.’ It is most important to note
here the reference to the presence of the son’s maternal relatives, for
this implies an assembly of the clan or wider kindred, not merely of
the gwely or descendants of a common living ancestor. It was this wider
kindred which paid and accepted wergeld, even though they had not all a
right of succession to family property. In the early clan system,[25]
wergeld was part of the common stock which was inherited by all the wider
kindred, and therefore decrees of expulsion, such as were pronounced, for
instance, in default of wergeld payment, were matters for the decision of
the whole clan rather than for those of the gwely or the ‘family.’ That
such a procedure should have survived in Plato’s time, when property
had to a great extent become ‘private’ in the modern sense, and when
the political power of the clans had long since vanished into thin air,
shows at once the tenacity of clan custom and the significance of Plato’s
account as an argument from survivals.

Plato has another reference to a clan court, to which Glotz has not
referred and which seems to us to furnish a splendid illustration of
the manner in which minor issues, which affected merely the members of
a local kindred, remained within the scope of clan jurisdiction even
in historical Athens. We shall see later[26] that, owing to religious
influences, kin-slaying became too serious a matter for the adjudication
of clan tribunals from the seventh century B.C. onwards. Even minor
cases of bloodshed such as ‘wounding with intent’ had probably, in
historical times, been transferred to the jurisdiction of an Attic state
court, called the Areopagus.[27] The clan court to which Plato refers,
in the present instance, seems to have had power to try and to punish
the wounding of a kinsman by a kinsman, in a passion; it is presumed,
however, that the wound was not sufficiently grave to interfere with
military service. Plato says[28]: ‘If one kinsman[29] wounds another ...
let the heads of families[30] (_i.e._ the elders) and the male and female
kindred, as far as the cousins[31] on the male and female side, come
together and having tried the case deliver the offender to his natural
parents to fix the fine[32]: and if the fixing of the fine be a matter of
doubt, let the kindred on the male side fix the fine definitely; and if
they are unable to decide, let them eventually refer the matter to the
“guardians of the laws.”’ Plato goes on to say that where children wound
their parents (presumably in a passion) the judges must be over sixty
years of age, none of them must be a relative of the offender, and they
may fix the punishment, which may include death.

We have already hinted[33] that the discrimination between degrees of
guilt in homicide cases, which is extremely minute in the laws of Plato,
and which is present in a cruder form in the Draconian code, finds
its ultimate origin in the old customs of tribal life. Bearing this
hypothesis in mind, we are not surprised to discover that such matters
as wounding _without intent_, which is not mentioned in Dracon’s code
and which therefore was not a matter for compulsory prosecution in Attic
state courts, can nevertheless be subjects for adjudication in the courts
of the clans. Of course, the ‘guardians of the laws’ whom Plato mentions
are technically officers of Plato’s ideal State, but the main factors
in the trial are doubtless derived from actual clan tribunals which
operated in Plato’s own experience, unless the ‘guardians of the laws’
are to be interpreted as symbolical of the appellant jurisdiction of the
State. Glotz, of course, thinks[34] that at no time was kin-bloodshed a
matter for Greek State courts, but we shall see, later, that this view
is most probably incorrect. Plato insists that the judges who condemn to
death the child who is guilty of wounding its parent must not be akin to
the child. This principle need not imply that the judges must have been
State judges. In the phratry and in the tribe one could find many men
over sixty years of age who were not akin to such an offender. The fact
that these judges in historical times had the power of condemning an
offender to death is probably to be attributed to a survival of tribal
jurisdiction in cases where that jurisdiction had not been definitely
arrogated by the State.

A further instance of the survival of clan and phratry courts may be
found in the law of Dracon[35] which prescribed a collective decree of
‘appeasement’ in cases of involuntary homicide. The law may be freely
translated thus: ‘Let there be “appeasement” if there is a father or
brother or sons (of the victim): let all agree or let one objector hold
the field; if there be none such, let all the kinsmen within the degree
of cousin (be appeased) if all consent to be appeased; if there are
none of these, and the slayer slew involuntarily, let ten phratores be
appeased if all consent to be appeased.’ The procedure here prescribed
applied only to involuntary homicide. Before the ‘appeasement’ a period
of exile had to be completed by the slayer.[36] It is not a case of
_accidental homicide_, which involved no punishment.[37] Glotz[38] argues
that the phrase ἅπαντας ἢ τὸν κωλύοντα κρατεῖν implies a universal clan
consent; but it is obvious that the law is satisfied by the consent of
groups within the clan or (in default of these) of the consent of ten
phratores, who were members of the same local religious union. The only
point we wish to make here is that in this survival of the consent of the
kindred for the abolition of a feud caused by involuntary homicide we
have all the elements which would have constituted a homicide tribunal in
days before the encroachment of State power. It can only be a survival
of a wergeld system of vengeance, as in this system alone is there found
a minute arrangement for payment and receipt according to the different
degrees of kinship. A similar law of clan-consent governed the rights
and duties of _burial_, even in the time of Demosthenes, and is appealed
to as evidence for the right of succession to property. Demosthenes thus
quotes[39] a law of Solon: ‘it shall not be lawful for any woman under
sixty years of age to enter into the chamber of deceased or to follow the
corpse when it is carried to the tomb except those within the degree of
cousins’ children.’ A law of Dracon[40] decreed that after burial of a
murdered man ‘proclamation shall be made to the homicide in the market
place by all the relatives within the degree of cousin; and cousins and
children of cousins and sons-in-law and fathers-in-law and phratores
shall prosecute.’ Here we have a clear picture of the solidarity of
the clan. The presence of the φράτορες, too, is significant. They
were strictly outside the clan, as each phratry included members of
neighbouring clans who were bound together by a common extra-clan
worship. In this co-operation of the φράτορες we plainly see a natural
basis for discussion and negotiation in blood feuds between different
clans; this co-operation extended also, in certain cases, to the tribe
and, after a coalition of tribes, to the ‘ancient city.’[41] Thus
Glotz[42] rightly says: ‘La famille fictive suit les principes de la
famille naturelle.... On dirait que le groupe a conservé, en souvenir
d’une parenté primitive, en vertu d’une parenté théorique, un droit
éminent sur les biens de chacun.’

So Fustel de Coulanges points out that just as each _gens_[43] or clan
had its own tribunal and chief, so also the phratry[44] had its own
phratriarch, assemblies and tribunals. ‘It was,’ he says, ‘a small
society modelled on the family,’ and the tribe[45] had, as chief priest
and judge, a tribe-king (φυλοβασιλεύς), and held assemblies whose decrees
bound all tribesmen. The nature of such tribal conventions and decrees
is further illustrated by a passage in Demosthenes, to which Coulanges
refers.[46] In a speech against Theocrines,[47] Demosthenes narrates how
the fellow-tribesmen of Theocrines convicted him of the embezzlement of
tribal funds and punished him by a fine; and he was forbidden by State
law to prefer any indictments against any citizen until he had paid
this fine, as in the meantime he was regarded as a State debtor. The
decree was moved against him at a tribal meeting by a certain Scironides
and the fine proposed was seven minae.[48] From such passages as this
Coulanges[49] argues that Plutarch and Thucydides are mistaken when they
say that Theseus destroyed the local magistracies after the synoekism of
Attica. This Demosthenic passage indicates clearly the survival of courts
whose primeval jurisdiction had been largely superseded by that of the
State.

Apart from those arguments which are based on the survivals of tribalism,
it is logically probable that since homicide in Pelasgian society was
normally atoned for by the payment of a collective wergeld penalty, which
affected the property of at least two clans, and since the judicial
machinery of Pelasgian tribes was such that it would ordinarily have
been set in motion for adjudication in disputes regarding property,
homicide was therefore a fit and proper subject for investigation by such
tribunals.


THE SHIELD OF ACHILLES AND THE ROYAL JUDGES

Homer, in describing the Shield of Achilles, happens to mention a
court which is appealed to in a dispute concerning wergeld, and such
a reference is as complete a confirmation of our hypothesis as can
reasonably be expected.[50] We have already given what we consider to be
the correct interpretation of this passage. The Elders were Pelasgian
tribal chieftains, who frequently came together and sat upon polished
stones, ‘in a sacred circle,’ holding in their hands the sceptre of
authority. It is quite probable, as Leaf[51] suggests, that two of the
Elders acted as ‘advocates,’ and it is almost certain[52] that the two
talents of gold which are mentioned were a kind of advocate’s fee which
was deposited by both litigants in order to encourage the advocates to
give a proper exposition of the unwritten code of the tribes. The fact
that the dispute concerned the payment of wergeld, and not the reality
of guilt, does not warrant the conclusion that the court of Elders could
not have functioned, if it were necessary, as a murder court. It is true
that in the group system of primitive tribal life there was never very
much difficulty in establishing the identity of the murderer; but it is
equally true that if an accusation was challenged or disputed, there must
have existed a court whose decision would have been accepted as final:
we cannot conceive an entire clan agreeing to pay the wergeld of 120
cows if the person who was accused of homicide had assured his own clan
court that he was innocent. Now the Elders of the Homeric trial-scene
would normally have adjudicated in cases of homicide between the members
of different tribes; and it is possible that they would have heard
appeals from tribal or phratry courts, in the event of disagreement
about inter-tribal cases. The Elders are therefore the _real_ δικασπόλοι
βασιλεῖς of the Homeric society. The fact that the Achaean kings are
credited with this _title_ in Homer does not prove that they ever
functioned as such. Leaf[53] thinks that they might have consented to
hear appeals in isolated instances, but the title δικασπόλος is one
which could frequently have been applied without very much significance
to Achaean feudal lords who possessed a theoretical supremacy in Greek
jurisdiction. Within the Achaean caste, these lords revealed no interest
nor did they acknowledge any obligations in the judicial aspect of
homicide. On the contrary, they frequently gave their daughters in
marriage to murderers! We think, therefore, that Leaf would not now find
so much difficulty in the absence of a ‘king’ in the Homeric trial-scene
as he did in 1883.[54] It is not certain, of course, in what Greek areas
Pelasgian groups still retained Pelasgian kings. The Minoan kings of
Mycenae, Lacedaemon, and Thessaly, and other districts disappeared in the
Achaean conquest. Still there survived a few Minoan or Pelasgian kings
who lived in friendly alliance with the Achaeans, and who could still be
truly described as defending ‘the Zeus-given θέμιστες.’ But it is also
true that at the time of the Trojan war the Achaean lords would have come
to be regarded as the ‘heaven-sent guardians of law,’ through the mere
fact that they were ‘kings.’

Maine[55] thinks that the θέμιστες (customs) of the Homeric age were
isolated judgments delivered without any orderly sequence or precedent.
But Glotz[56] insists that the word θέμις is peculiarly applicable to
tribal custom, as opposed to the terms δίκη and νόμος. We believe that
the word generally refers to Pelasgian traditions.

In the _Iliad_[57] we are told that Zeus is wrathful against men who
judge crookedly in the Assembly, and drive out Justice. Who are these
men? They may, of course, be Achaeans, but we think it more probable that
they are the judges, and therefore the chiefs, of Pelasgian tribes—judges
whose tribal successors were accused of corruption in the days of
Hesiod,[58] when the Achaeans were no more. In Homer two talents of gold
were offered as a reward for an advocate’s successful pleading, and the
advocates were probably chosen from the same caste as the judges. From
this it is but a short step to bribery and the corruption of justice.
Hence we can understand the words of Hesiod: ‘The people pay for the
folly of their kings, who with ill thoughts wrest aside judgments,
declaring falsely. Beware of these things, ye kings, and set straight
your speech, bribe-devourers, and utterly forget crooked judgments.’
And again[59]: ‘There is the noise of the haling of Justice wheresoever
bribe-devouring men hale her, adjudging dooms with crooked judgments.
And she followeth weeping, clad in mist and fraught with doom, unto
the city and the homes of men who drive her forth.’ In ancient society
social law is inseparable from religion; as Coulanges puts it[60]: ‘To
disobey law is sacrilege.’ The law was regarded as the exclusive secret
of the hereditary nobility,[61] who alone could interpret it and whose
decision was final. The opportunities for profit-making and bribery in
such a system must have been innumerable. In later times when democracy
asserts itself the less-privileged orders,[62] championed sometimes by
tribal or quasi-feudal kings, sometimes by usurping tyrants, equipped
with mercenaries, compelled the ‘Elders’—that is, the old patriarchal
sacerdotal nobility—to codify their laws and to admit to judicial power
the ‘new nobility’ of wealth and the ignoble proletariat. The old
nobility came then to be distinguished for the integrity of its judicial
character, partly because it had lost its monopoly of power, partly
because corruption could no longer be practised with impunity.


ORIGIN OF HOMICIDE COURTS

From what has been already said[63] it must be sufficiently clear
what was, in our opinion, the origin of murder-trial in early Greece.
The local courts of clans and tribes constituted a nucleus for the
development of central State courts when civic groups emerged into
being through political synoekism. Homicide was a proper subject for
litigation, in the tribal wergeld system, simply because the normal
penalty involved a transfer of collective property or the expulsion of a
tribesman. If then phratry-courts had to decide issues between different
neighbouring clans, if tribal courts had to decide disputes between
clans of widely separated localities, is it not natural to suppose that
the State courts of synoekised areas would have adjudicated in disputes
between members of different tribes? Hence the judicial assembly of
tribe-kings (φυλοβασιλεῖς) constituted a more or less important State
court from the most remote antiquity. In historical Athens, Aristotle[64]
assures us that they still judged, at the Prytaneum, indictments
concerning animals and inanimate objects (δικαὶ ἀψύχων). Glotz[65] says
of the Prytaneum Court: ‘Il semble même qu’il ait été le premier et
longtemps le seul tribunal d’Athènes.’

Let us now consider some other hypotheses as to the origin and evolution
of homicide-courts. Glotz and Bury are in agreement in supposing
that wergeld was abolished, not by the Apolline religion, but by the
establishment of State power: though, in so far as it was the Apolline
doctrine of ‘pollution’ which compelled the State to interfere, they
would be compelled to admit that Apollinism contributed to the abolition
of wergeld if it did not directly abolish it. Glotz, in particular, is
anxious to establish a novel theory of his own,[66] to the effect that
it was Solon, not Dracon, who abolished wergeld! The only reason he
gives is that Solon’s general policy was opposed to clan-jurisdiction
or clan-power exercised to the detriment of the State. This opinion we
shall discuss in its proper place.[67] But there is an important element
of truth in the Glotz-Bury position which must be clearly indicated. We
have said that the original Pelasgian State courts very probably heard
disputes in regard to homicide, at least between members of different
tribes. Now, tribal society is based on a close exclusive aristocracy of
birth. Strangers may be received with temporary hospitality, but their
adoption into the permanent life and privileges of the tribe was a matter
of great difficulty.[68] Every tribe contained a gradually increasing
number of ‘hangers-on,’ lackland men, bondsmen, serfs, and casual
vagrants, who may be regarded as the nucleus of the plebeian movement
which in many cases culminated in democracy. The growth of commerce in
the seventh century, the invention of coinage, migration and colonisation
led to the rise of a new aristocracy of wealth[69] as distinct from
birth. Many of the ‘new men,’ who now were very powerful, did not belong
to the old aristocratic tribes. In cases of homicide between members of
this new group, who would act as judge? The tribe-kings regarded such
a group as entirely outside their caste. For such a group there was
neither religion nor law nor justice. Hence they probably resorted to
what we have described as unrestricted vendetta. It was precisely at
this juncture, as we think, that the new religion of Apollo, with its
quasi-Asiatic doctrine of murder as a ‘pollution,’ came to Greece. Murder
now became a ‘sin’ against the State gods. If unpunished, it brought
upon the State the anger of its gods. State courts were now compelled
to sit in judgment on all cases of homicide which occurred within the
State: no longer were the tribes permitted to adjudicate for intra-tribal
slaying. They could still hold ‘minor investigations’ at their local
Prytaneum; though we cannot agree with Müller and Philippi in describing
as a ‘mock-trial’[70] their investigations into the guilt of animals and
inanimate objects (δικαὶ ἀψύχων). But the man ‘who shed man’s blood’ had
now to appear before the central tribunals of the State: all men had to
appear, not merely the aristocratic heirs of tribal privilege. This, in
our view, is what happened in the seventh and sixth centuries B.C. In
the circumstances of the time it was an event of incalculable utility
to Greek societies. But the lustre of the event and the chaos which it
terminated have dazzled the minds of modern thinkers so much that they
forget the older and, for the period of its power, the equally effective
vigour of the courts of the tribal State. _Thus, what Glotz and Bury have
attributed to the evolution of State power is really to be attributed to
the new non-tribal democracy and the religion of Apollo._

The view of Gilbert and Köhler,[71] and, we may add, of Müller,[72] which
places the origin of trials for homicide in the conception of bloodshed
as a sin and in the respect for sanctuary, remains for discussion. Müller
is, we think, mistaken in supposing that bloodshed was sinful from the
earliest dawn of Greek society, and that wergeld originated in the
purgation-ritual.[73] This opinion we shall criticise at length in the
next chapter. Gilbert’s conception that the right of sanctuary existed
from immemorial antiquity and was a necessary preliminary to wergeld
negotiations cannot be harmonised with the evidence of the Homeric poems
or with the customs of other analogous tribal peoples. We shall find,
indeed, in Euripidean legends evidence of the efficacy of sanctuary to
protect[74] the suppliant, but we also find evidence that it was potent
merely to delay[75] the inevitable doom. In Homer there is no suggestion
that an Achaean would have ever heeded, or that a Pelasgian would have
ever needed, such a refuge. Quick vengeance, permitting, as Demosthenes
says,[76] no κρίσις between φόνος and τιμωρία, is not a characteristic of
the tribal wergeld system. In regard to later times, Gilbert says that
‘when the State took into its own hands the regulation of vengeance for
bloodshed it respected the right of sanctuary in so far that the three
places of trial were connected with three sanctuaries.’ He refers, we
presume, to the Attic courts known as the Areopagus, the Palladium, and
the Delphinium. But the connexion of these courts with local temples may
be otherwise explained. Coulanges[77] points out that the assembly-place
of the Roman Senate, which was a judicial as well as an administrative
council, was always a temple. We shall see later that the murderer in
the ‘pollution’ period was debarred from any contact with a temple under
most serious penalties. We must then defer to a subsequent stage of our
work[78] the final refutation of Gilbert and of Müller and the complete
exposition of our own hypothesis as to the origin and evolution of the
Attic murder courts.


FOOTNOTES

[1] _Il._ xviii. 497-508; _supra_, p. 34 ff.

[2] _History of Greece_ (2nd ed.), p. 172.

[3] _Manual of Greek Antiquities_, p. 406.

[4] _Op. cit._ p. 145.

[5] _Op. cit._ p. 172.

[6] _Gk. Const. Ant._, Eng. trans., p. 379. So, Köhler, _Herm._ 6. 102,
there quoted.

[7] _i.e._ in Attica.

[8] P. 115; _supra_, p. 33.

[9] Pp. 51, 52.

[10] Pp. 237-8.

[11] _Infra_, Bk. II. chap. ii.

[12] _Supra_, p. 6 ff.

[13] See _infra_, pp. 243 ff., 262 ff.

[14] _Op. cit._ p. 157.

[15] _Ancient Law_, p. 217.

[16] P. 173.

[17] _Op. cit._ p. 150.

[18] Stubbs, _Select Charters_, p. 73.

[19] _Supra_, p. 38.

[20] _Hecuba_, 1135-1255.

[21] _H. and H._ p. 258.

[22] _Op. cit._ p. 42.

[23] _Laws_ xi. 929 A-C.

[24] Reading ὅσοιπερ ἂν ὦσι ... μὴ τέλειοι.

[25] _Supra_, p. 8.

[26] _Infra_, pp. 230, 236 ff.

[27] Aristotle, _Ath. Pol._ 57.

[28] _Laws_, ix. ch. 15.

[29] ὁμόγονος.

[30] Reading: γεννήτας.

[31] ἀνεψιῶν.

[32] τιμᾶν.

[33] _Supra_, p. 57.

[34] P. 322.

[35] See Dareste-Reinach, _I.J.G._ xxi. 13-19, where ἐσέσθων (from ἔσίημι
= permit to return from exile) is found instead of αἰδεσάσθων apud Dem.
_c. Macart._ 1069 (57); Glotz, p. 313; _infra_, pp. 193, n.; 205.

[36] See _infra_, pp. 178 ff., 187, 211 ff.

[37] See Dem. _in Aristocratem_, 637.

[38] _Op. cit._ p. 313.

[39] _Contra Macart._ 1071.

[40] _Ibid._ 1069.

[41] See Coulanges, _op. cit._ p. 157 ff.

[42] _Op. cit._ p. 194.

[43] _Op. cit._ p. 137.

[44] P. 157.

[45] P. 158.

[46] P. 158.

[47] 1326 (Reiske).

[48] About £28.

[49] _Op. cit._ p. 173.

[50] _Il._ xviii. 500.

[51] See note on passage in edition of _Iliad_ (1902), p. 611 ff.

[52] Maine, _Ancient Law_, p. 313; _supra_, p. 40.

[53] _H. and H._ p. 47.

[54] _Supra_, p. 34 ff.

[55] _Ancient Law_, p. 7.

[56] Glotz, p. 237.

[57] See _Il._ xvi. 386-8.

[58] _W. and D._ 260.

[59] 220 ff.; see also 40.

[60] _Op. cit._ p. 249.

[61] _Ib._ p. 336.

[62] Coulanges, _op. cit._ pp. 314, 338.

[63] _Supra_, p. 81 ff.

[64] _Ath. Pol._ 57.

[65] _Op. cit._ p. 190.

[66] P. 321 ff.

[67] See _infra_, pp. 179 ff., 222.

[68] Coulanges, _op. cit._ pp. 42, 195.

[69] P. 364.

[70] Philippi, _Areopag._, pp. 15-16; Müller, _Eum._ pp. 141-2; see
_infra_, p. 197.

[71] _Supra_, p. 80.

[72] _Eumenides_, p. 136 ff.

[73] Müller, _op. cit._ p. 123; see also Philippi, _Areopag._, p. 3.

[74] E.g. _Ion_, 1258, 1275, 1283, 1315.

[75] _Her. Fur._ 250, 715.

[76] _In Aristoc._ 640, 63.

[77] _Op. cit._ p. 217.

[78] _Infra_, Bk. II. ch. iii.




CHAPTER V

RELIGIOUS ASPECT OF HOMICIDE IN EARLY GREECE

    Current views: digression on evolution of Greek religion:
    ancestor-worship: nature-worship: animal sacra: image-magic:
    anthropomorphism: Achaean and Pelasgian contributions to
    Homeric religion: fusion of Achaean and Pelasgian dogma and
    ritual: religious aspect of kin-slaying amongst Pelasgians
    and Achaeans: origin and evolution of the Erinnyes: origin
    of homicide-purgation: comparison of Pelasgian with Achaean
    Erinnys, and of Homeric Erinnys with post-Homeric and ‘tragic’
    Erinnys.


There is a considerable variety and conflict of opinions about the
religious aspect of homicide in Homeric Greece. We have already explained
by quotations from Glotz[1] and Bury[2] the theory which conceives the
shedding of human blood as a deed which, in those days, did not touch the
gods or draw down the anger of the gods on the community. On the other
hand, Leaf, who indicates a clear and emphatic distinction between the
religious beliefs and customs of the Achaeans and the Pelasgians, holds
that the Achaeans ignored and the Pelasgians respected[3] ‘the most
sacred of all taboos which forbids the shedding of _kindred blood_’: for
the Pelasgians retained the ‘primitive family system, with all its rites
and taboos’[4] and possessed, therefore, the foundations of primitive
society and religion.’[5] Again, Fustel de Coulanges, in his analysis of
the primeval domestic religion of the Ancient City, says[6] that ‘the
shedder of blood was no longer able to sacrifice: the hand stained with
blood could not touch sacred objects.’ He believes, however, that[7]
the manslayer could be purified by an expiatory ceremony. Miss Harrison
holds a somewhat similar view[8]: ‘Purification,’ she says, ‘is the
placation of ghosts and, unknown to the Olympians (_i.e._ _Achaeans_),
was the keynote of the lower stratum (_i.e._ _Pelasgians_).’ ... ‘The
extreme need of primitive man for placation is from bloodshed: this is
at first obtained by offering the blood of the murderer; later, by the
blood of a surrogate victim applied to him.’ ... ‘So long as primitive
man preserves the custom of the blood feud, so long will he credit his
dead kinsman with passions like his own.’[9] So, Müller maintains[10]
that the religious rites of expiation and purification are derived from
the remotest times of Greek antiquity and were designed to reinstate
the slayer in religious communion with his family and his comrades.
Purgation ceremonies are, he thinks,[11] based upon the idea that the
manslayer must atone with his own life, but that this life may be bought
off by vicarial substitution, by a sacrificial victim symbolical of
such substitution. Our own views upon these subjects will appear in the
course of the discussion: we shall point out, amongst other things, the
distinction between expiation (ἱλασμός) and purgation (καθαρμός), and
while refusing to accept on the one hand the views of Müller and of Miss
Harrison, and indicating, on the other hand, the inaccuracies in the
views of Glotz, Bury and the generality of writers, we shall develop
and expand a theory which is suggested by Leaf’s[12] general position
and which distinguishes carefully between the religious attitude of the
Pelasgians and the Achaeans. To achieve this purpose it will, however, be
necessary, even at the cost of a digression, to give a brief account of
the evolution of early Greek religion.


ANALYSIS OF EARLY GREEK RELIGION

To the scientific mind of a modern European living in the atmosphere
of a highly secularised society, nothing can appear more curious
and incomprehensible than the almost universal belief in ubiquitous
supernatural forces which is revealed in ancient literature. Such a
belief is not, however, a symbol of savagery or barbarism; it is merely
a symptom of the absence of scientific knowledge. The general principle
that men in all ages attribute to occult forces every effect of which
the cause is unknown or mysterious, is clearly expressed by Lucretius[13]:

    quippe ita formido mortales continet omnes
    quod multa in terris fieri caeloque tuentur
    quorum operum causas nulla ratione videre
    possunt ac fieri divino numine rentur.

It was natural then, in an age of unscientific mentality, that plagues
and pestilences, and diseases of all kinds, lunacy and sterility,
the failure of harvests, misfortune in peace or war, adverse winds,
volcanoes, inherited characteristics, the activities of genius, emotion
and desire, birth, growth, death and decay—almost everything that crosses
the threshold of human consciousness—should be ascribed to the ubiquitous
and perpetual operation of supernatural agents. The literature of ancient
Greece and Rome is permeated with such beliefs. We will quote just one
characteristic passage from the _Eumenides_ of Aeschylus. When the
avenging Erinnyes of the slain Clytaemnestra threaten to hurl the shafts
of their wrath upon the Attic land because it has harboured Orestes,
whom they regard as the murderer of his kin, Athene, who has caused a
murder-court to declare him free from guilt, apparently on a plea of
justifiable homicide, commands the Erinnyes to be appeased, and says:
‘Hurl you not the weight of your wrath upon Attica; be not indignant,
nor cause barrenness by sending down the blighting drops that come from
Spirits, the cruel bitter destroyers of our seed.[14] ... Fling not upon
earth the fruit of thy wild curse, causing all things not to prosper.[15]
... Sow not within my boundaries those spurs to bloodshed that ruin young
men’s hearts, maddened by a frenzy not born of wine[16] ... but (send)
blessings from earth and from the waters of the deep, and from the sky
wind-breezes that blow with kindly sunshine over earth: (send) fruit of
the soil and of things that live, flowing with untiring vigour to my
citizens, and of man’s seed a safe deliverance at the birth.’[17] The
Erinnyes, in consenting to be appeased, reply: ‘With kindly prophecy we
pray for you here, that the radiant sunlight may bring forth with speed
from earth the blessings of your life[18] ... never—such is my boon—may
the trees feel the hurtful wind or the scorching fire that robs them of
their buds ... or blight creep over them eternally that blasts their
fruitfulness: and may Pan bring to full growth the prosperous flocks that
will bear from wombs a twofold fruit, and in due season may the produce
of rich earth present you with the good gods’ gift of fortune[19]: ... on
the young men I forbid to fall the stroke of death untimely: and that the
lovely maids find each her husband—do ye grant it, O ye who reign, and
ye, O Fates divine![20]... May the roar of Faction, thirsting for evil,
never in this place be heard, nor the dust that drinks the dark blood of
fellow-citizens bring to the State, from passion for revenge, the doom of
retaliation. But may the citizens rejoice one another with a common love
and hate only in union as one man.’[21]

The modern European, taught in childhood to accept the Christian doctrine
of the divine creation of the world, must exert himself considerably if
he is to realise that in Greek religion the notion of such a creation
is not found before the fifth and fourth centuries B.C., and even then
it existed only in the atmosphere of a pious philosophic sect. To
the ancient Greek mind, the earth was not created; it had been from
everlasting: it was itself divine. Gilbert Murray rightly says[22]
that the chief objects of primitive man’s emotional activity are the
food-supply and the tribe-supply. By a well-known confusion of cause and
effect characteristic of the primitive mind, the earth became the object
of universal worship, because of its association with the production of
food.

Similarly, animals came to be regarded as sacred, though different races
adopted different viewpoints in regard to their sacred character. In some
instances a certain animal was ‘sacred’ simply because it was eaten: in
others it was ‘sacred’ because it was ‘tabu’ or sinful to eat it. We
shall see that the animal slain in certain Chthonian rites could not be
eaten,[23] but it was ‘sacred’ all the same. The ancient notion, which
has survived so long in witchcraft, of the magical power of placation by
images or effigies led to the widespread construction of those animal
images which are so familiar to the students of primitive religion.[24]
When divinities in human form, when anthropomorphic _sacra_, take
precedence of the animal god, traces of a fusion in image-magic are
clearly visible. Whether by accident, or by reason of some traditional
connexion, certain human gods came to be associated with certain species
of animals. The sacrifice of such animals was regarded as particularly
pleasing to such gods, and it is therefore arbitrary to assume that
the sacrifice of animals was originally accepted as a substitute for a
previous human sacrifice. Herodotus says[25] that the image of Isis in
Egypt was that of a woman with cow’s horns: that a statue of Zeus in
Egypt showed the figure of a man with the face of a ram. When the people
of Egyptian Thebes sacrificed, annually, a ram to Zeus, they covered the
statue of Zeus with the skin of the ram.[26] We know that the worshippers
of the orgiastic Dionysus clothed themselves in fawn-skins,[27] and
that the satyric choruses from which, we may suppose, Greek tragedy
developed,[28] were dressed, to some extent, as goats. The goat and the
snake, as well as the bull and the ram, seem to have been worshipped in
early times as symbols at once of the fertility of the soil and of the
fertility of the race. The serpents which gaze at us so terribly from the
heads of the Aeschylean Erinnys are probably, in origin,[29] derived from
the belief that the souls of the dead are connected with the fertility of
the earth.[30] Herodotus tells us that offerings were regularly made to
an imaginary serpent which was supposed to reside in the temple of Athene
Polias at Athens.[31] This serpent symbolised, like the undying fire of
the Roman Vesta,[32] the immortal progenitor of the race.


ANTHROPOMORPHISM AND THE OLYMPIANS

In regard to the origin of anthropomorphic religion in Greece, we can
only say that we prefer the opinion of F. de Coulanges,[33] which derives
it from the ancestor worship of the early Pelasgian peoples, to that of
Miss Harrison which, in its latest form, attributes it to a political
anti-Persian reaction of the sixth and fifth centuries B.C.[34] Coulanges
believes that when once the idea of human gods took shape, it tended at
once to personify and humanise all the various objects of worship.[35] It
is significant that the Persians, who had no ancestor worship, did not
conceive their gods in human form.[36] Amongst the Greeks, however, who
worshipped dead ancestors from the dawn of their history, the ‘ghost’
gave its form to the god.

Assuming, then, Coulanges’ theory of the evolution of anthropomorphism,
we must regard as absurd the opinion of some ancient writers who
maintained that Homer and Hesiod not only told false stories about the
gods but gave them, moreover, the manners and shapes of men.[37] The
precise contribution of such poets as Homer to ancient religion is
difficult to define, but we believe that it was not so much constructive
as destructive. The poet gave a certain immortality to the conceptions
which he expressed: the effect of a Bible in religious evolution is
essentially conservative. It tends to stereotype for all men and for
all time the religious opinions of its day. Now Homer was the poet
of the Achaeans, and the Achaeans, as Leaf says,[38] conceived the
gods as typical Achaeans of the other world. Whether they brought new
human gods[39] to Greece or merely gave a personal interpretation to
the Pelasgian gods, we need not at the moment decide. The gods of the
Achaeans were conceived as kings and rulers like themselves. If they
do not create the universe, they at least divide it into realms or
dominions.[40] Moreover, they are presented as related to one another
by blood, or connected by intermarriage, as the Achaeans were. They
naturally have their quarrels, their disputes, their rivalries and their
jealousies, as the Achaeans had. The stamp of the Achaean caste marks
the Homeric pantheon. But apart from the great Olympian gods, there are
a number of minor deities who suggest the existence of a less privileged
social and religious caste. It is in this caste that we believe that we
can find the source of supply or the materials for the creation of the
Olympic Pantheon. Such a Pantheon could never have been the exclusive
creation of Homer. If the Achaeans created it, they were limited,
surely, by the nature of the materials at their disposal. Their creative
power was restricted and directed, as we believe, by a pre-Achaean
evolution of grades of divine greatness within the galaxy of Pelasgian
divinities[41]: an evolution which attributed to elemental forces and
to national ancestor-gods a power to which no mere local ‘ghost’ could
aspire to attain. The Pelasgians and Minoans in their tribal villages,
and particularly in their city-religion, had, we think, evolved the
distinction between the greater and the lesser gods, between the gods
of the upper air, and those of the sea and of the earth below, which
was so characteristic a feature of later Greek religion. True, many of
their ‘deities’ were nameless, as Herodotus[42] seems to have heard
that they were at Dodona, and as the ancestral spirits of historical
times still were, since they were addressed as _Keres_ at the Athenian
Anthesteria.[43] But the old tribal and city gods must have had names.
It would have been otherwise impossible to distinguish them from one
another in the multitudinous deifications of an ancestor-worshipping and
nature-worshipping peninsula. Coulanges[44] holds that the local gods of
primitive peoples often carry the same name even when they are really
different in form and ritual. But here we think that we can detect the
influence of Homer and the Achaeans. The Homeric god is stereotyped in
form and character as in name. The form and character was created, we
believe, by the military Achaean caste, while the name was in most if
not all cases a Pelasgian product. It was all the more possible for the
Achaeans to give character and personality to the gods, if there had been
local variations in the Pelasgian types. Moreover, the Achaeans drew, so
to speak, a line of demarcation around the gods of their choice. They
created a Pantheon of an exclusive type, which, by its prestige in later
years, checked the Pelasgian tendency to increase the number of the
greater gods, and compelled the Greeks to accept, instead, the worship
of _Heroes_.[45] The creation of such a Pantheon presupposes, we think,
the existence of an identity of type within some widespread organised
society. No mere local poet or city-state could have created it. As we
have no evidence of the existence in pre-Homeric days of a national union
or federation of Minoan kings, or of a national Amphictyony, such as
we meet with in later times, we naturally attribute to the ubiquitous
Achaean caste and their poet-Royal the creation of that Pantheon which
was the mainstay of Achaean religion. But this Pantheon was created
out of pre-existing Pelasgian materials. We do not agree with Leaf and
Chadwick in the view that the Achaeans were the _creators_ of Greek
anthropomorphic religion.[46]


ACHAEAN-PELASGIAN RELIGIOUS FUSIONS

Many of the difficulties presented by Homeric religion are to be
attributed to the fact that that religion was an eclectic product. If
we compare the beliefs and customs of the Achaeans and the Pelasgians,
it will be obvious that despite the circumstance of their social
coexistence, a complete blending or fusion in dogma or in ritual would
have been impossible. Yet it is equally impossible to suppose that both
Pelasgians and Achaeans preserved their religious rites and conceptions
unadulterated and pure.

Miss Harrison is, we think, mistaken—she seems to admit it in a later
work[47]—in assuming that the Achaeans are to be associated with Olympian
ritual, and the Pelasgians with Chthonian ritual, and that there is a
rigid line of distinction between the two castes. Just as the Olympian
rites which are so common amongst Homeric Achaeans were, we think,
practised also by Minoan kings and Pelasgian nobles, so the Chthonian
rites of the tillers of soil were practised, on occasions, by the
Achaeans, and would perhaps have been more frequently practised if there
had not existed within the two castes differences of dogma, such as we
shall presently indicate. In our analysis of the social and judicial
aspect of Homeric homicide we were enabled to differentiate clearly
between the Achaeans and Pelasgians, for their social organisations
were different and distinct. In a religious analysis, however, the gulf
cannot with equal clearness be indicated, if we suspect that the practice
of common rites and the eclectic conception of common gods may have
modified the differences which are otherwise maintained. Leaf is aware
of the complexity of the problem, which he aptly describes as a ‘tangled
skein.’[48] We do not, however, agree with Leaf’s opinion[49] that ‘there
is no trace in Homer of any Chthonian religion,’ if the word ‘Chthonian’
carries its usual significance. Leaf implies that the Achaeans, before
they came to Greece, were worshippers of the dead. The absence of such
worship in Homer is, he says,[50] due to the severance of the military
adventurer from the tombs of his fathers. ‘It is impossible to pay due
rites to the departed when their tombs have been left far behind in the
course of long migrations.’ We have seen[51] that the Achaeans were
long enough settled in Greece, at the time of the Trojan war, to have
produced relations extending to second and third cousins once removed.
Surely the habit of ancestor-worship could easily have been renewed in
the course of so many generations. We believe that the Achaean conception
of a spirit land and their practice of cremation are a clear indication
of the absence of the primitive ideas of ghost-raising, ghost-laying and
fertility worship, which are the regular[52] concomitants of the cult of
the dead. _The dogmas which underlie these different burial rites cannot,
we think, be fused. They can only combine by the evolution of an eclectic
doctrine._ Had such a doctrine evolved in Homer? The only passage in the
Homeric poems which can help us to decide is the _Nekuia_[53] of the
_Odyssey_.


THE NEKUIA OF THE _ODYSSEY_.

Ridgeway’s theory[54] of the difference between the Pelasgian and the
Achaean cults of the dead is now well known. The former, he maintains,
buried their dead, honoured them with periodical offerings of food and
drink, and believed that the dead lived in a subconscious state in the
tomb; the latter, however, cremated their dead, practised no regular tomb
offerings (χοαί), and believed that the souls of the dead flitted away
through the air to a place called Hades in the west. The curious thing
about the _Nekuia_ is that the souls of the dead in Hades are represented
as anxious for food and drink, and when Odysseus sacrifices there, the
ghosts come forth to lick up the blood of the victim. Further, it is
only when they have drunk the blood that they regain their memory and
recognise their friends again.[55] Odysseus thus describes the scene
at the entrance to Hades to which he has been miraculously permitted
to descend: ‘There (_i.e._ at the entrance to Hades) Perimedes and
Eurylochus held the victims and I drew my sharp sword ... and dug a pit
... and about it poured a drink-offering to all the dead ... mead and
sweet wine and water ... and I took the sheep and cut their throats over
the trench and the dark blood flowed forth and lo! the spirits of the
dead came out of Erebus ... and they flocked together from every side
about the trench.[56] First came Elpenor that had not yet been buried
...[57] (who said) “Leave me not unwept and unburied ... burn me and
pile me a barrow on the shore....”[58] Anon came the soul of the Theban
Teiresias ...[59] (who said) “Whomsoever of the dead thou shalt suffer to
approach the blood, he shall prophesy truthfully ...”[60]: my mother too
drew nigh and drank the dark blood and at once she knew me.’[61]

Miss Harrison seeks to explain the difficulty which is presented by this
unique passage concerning the Homeric cult of the dead by maintaining
that it is a fusion of _Chthonian and Olympian ritual_.[62] On the
assumption which underlies the reasoning in ‘Themis,’ namely, that
the Homeric poems assumed their final form and their characteristic
theological setting in the time of Pisistratus,[63] it is surprising
that we have not more frequent instances of such a fusion in the Homeric
poems! Those poems contain many references to Chthonian deities,
_e.g._ to the Erinnyes, to Ge, and to Hades. But in the _Nekuia_ there
is question not of gods but of ghosts—ghosts, too, conceived in a
predominantly Achaean way, as living together in a western spirit-land.
Other Chthonian rites are frequently mentioned in Homer, but not the
placation of ghosts. Thus, in the _Iliad_[64] Agamemnon swears a solemn
oath in a manner which is essentially Chthonian. With sword in hand and a
boar prepared for sacrifice, he prays (or curses) thus: ‘Be Zeus before
all witness ... and Earth and Sun and the Erinnyes who under Earth take
vengeance upon men who forswear themselves, that I ... and if aught that
I swear be false, may the gods give me all sorrows manifold....’ ‘He
spake and cut the boar’s throat with the pitiless knife: and the body
Talthybius whirled and threw into the great wash of the hoary sea.’[65]
The reason for the action of Talthybius in this passage is that, in
Chthonian ritual the animal which was slain to symbolise the hypothetical
destruction of the swearer if certain promises were not carried out,
could not be eaten and hence was thrown into the sea.

Ridgeway, who believes that the whole of the _Iliad_ and the _Odyssey_
was composed before 1000 B.C.[66] and who has done so much to
differentiate Achaean and Pelasgian burial customs, finds in the _Nekuia_
a fusion of _Achaean and Pelasgian ideas_. ‘Such a blending of religious
ideas,’ he says, ‘is but the natural concomitant of the intermixture of
two different races and cultures.’[67] But Ridgeway is still not quite
accurate if he means to imply that any real blending of _ideas_ had
occurred. We have said that the ideas underlying these different rites
could never be really fused, but they could amalgamate in the form of
an eclectic religion. We may regard it as a confirmation of our view
that Ridgeway has to confess that the fusion of Achaean and Pelasgian
ritual of which there is a solitary suggestion in the _Nekuia_ does not
seem to have established itself in Greece very long before the time of
Aeschylus.[68] He says: ‘According to the Homeric doctrine, once the body
was burned, the spirit returned no more from its dwelling place with
the dead. But on this point Aeschylus held a very different view. It
is evident that by the time of Aeschylus an eclectic doctrine had been
evolved. The Homeric belief in a separate abode for disembodied spirits
was adopted, but at the same time the ancient doctrine of the constant
presence of the soul in the grave of its body was retained, the gulf
between both doctrines being bridged over by the theory that even though
the body was burned, the soul could return to its ashes in the grave.’
Now the tomb-offerings made by Odysseus in the _Nekuia_ do not take place
at a tomb, but at the entrance to Hades. The inference from this fact is
_not_ that there was a blending of Achaean and Pelasgian _ideas_, in the
cult of the dead, but that it was possible for Achaeans who practised
other forms of Chthonian ritual to perform such rites when commanded to
do so in the realm of Hades, _the only place where their dogmas made
such rites intelligible_. If the Achaeans had believed in the Pelasgian
doctrine of the presence of the soul in the tomb, they would normally
have made Chthonian offerings at their tombs. Believing, as they did,
that the souls of the dead lived in Hades, they could only find meaning
in such a rite if they came, as Odysseus came, to the realm of Hades. We
have seen that the Achaeans, and Odysseus in particular, were familiar
with Pelasgian beliefs, and had, in common with their subjects, certain
Chthonian rites. The _Nekuia_ therefore, instead of proving a fusion of
beliefs, seems to us to suggest, on the contrary, that such a fusion had
not taken place in Homeric Greece.

In the _Odyssey_[69] Circe instructs Odysseus in the rites which he must
perform when he goes to the ‘dank house of Hades.’ The fact that he
has to be instructed in this matter suggests that it was not a normal
procedure in his domestic life. The same may be said about the command of
Circe in regard to Teiresias. Circe bids Odysseus, when he performs the
Chthonian rite in Hades, to promise that on his return to Ithaca he will
offer up in his home ‘a barren heifer’ and fill a pyre with treasures,
and ‘sacrifice apart, to Teiresias alone, a black ram without blemish.’
The burning of a mock-pyre, and the sacrifice of a barren heifer, may
be an Achaean rite. The motive is the placation of the dead, but the
rite is quite different from that regular feeding of the dead which
is so frequent in necromantic magic and in ancestor-worship.[70] The
offering of a black ram to Teiresias is, however, somewhat different.
It is Chthonian, but we connect it especially with the worship of
‘prophets.’ Teiresias was a prophet of the old Pelasgian religion.
He belongs to a stage in the evolution of prophecy which is akin to
necromancy and witchcraft and which preceded prophetic colleges, ‘magical
secret societies,’[71] or divination by direct inspiration. This latter
divination retained indeed traces of the older rites. Thus in the _Ion_
of Euripides[72] the pilgrims to Apollo at Delphi are required before
consulting the oracle to sacrifice a πέλανος, a Chthonian offering of
meal, honey, and oil. So in Vergil’s story of the visit of Aristaeus to
the underworld, we find that Cyrene tells Aristaeus to offer, nine days
after his return, a Chthonian sacrifice to an offended prophet, Orpheus:

    inferias Orphei Lethaea papavera mittes
    et _nigram mactabis ovem_ lucumque revises.[73]

We do not therefore agree with H. Seebohm[74] when he says that the
placation of Teiresias proves that offerings to the dead were regularly
made by the Achaeans in their ordinary domestic life.


RELIGIOUS ASPECT OF HOMICIDE

We have pointed out that in Homeric Greece there were, so to speak, two
different religions, which reflected, in their main features, the social
caste-differences of the Achaeans and the Pelasgians. It has been rightly
said that primitive man creates his gods in his own likeness, and in the
absence of any definite Homeric references to the religious aspect of
homicide we must assume that the two religions of Homeric Greece adopted,
towards homicide, the attitudes of the two corresponding social strata.
Amongst the Achaeans, we have seen, homicide was a deed which concerned
only the slayer and the nearest blood-relations of the victim; there
was no co-operation of large groups, no trial, no civic interest in the
execution of vengeance: it was entirely a matter for ‘private settlement’
between the relatives of the slain and the individual slayer. And this
‘settlement’ was not a payment in money or in kind: it was a payment in
blood, and in blood alone. The Achaeans, as a caste, had no interest
in such ‘crimes’: on the whole, they regarded bloodshed as a local
misfortune, which should not be aggravated by an extension of the dispute
to wider areas, and therefore they frequently adopted and protected
murder-exiles. We are not then surprised to find that in Homer the
Olympian gods of the Achaean caste manifest no anger against a murderer.

In the Pelasgian tribal religion we may assume that the position of the
homicide was somewhat different. It required the payment of wergeld
to purchase back the friendship of tribal gods. But we have seen[75]
that for slaying within the kindred no payment of wergeld could be
offered or accepted; and we have said[76] that the penalty of slavery
or bondage was probably inapplicable and that therefore exile was the
normal punishment for bloodshed within the clan. It follows that the
murdered man whose body was interred in the family tomb would never have
come in contact, through worship, with his kinsman who had slain him.
And in this sense we may accept the dictum of Coulanges[77] that ‘the
hand stained with blood could not touch sacred objects: the shedder of
blood could not sacrifice.’ Hence it is perhaps significant that, in
Homer, Tlepolemus who, when he had slain his maternal uncle, went into
exile to Rhodes, is said to have been ‘loved by Zeus,’[78] for by exile
he had atoned for his offence. In ordinary cases of homicide, however,
between members of different clans, we must suppose that the gods of the
phratry, of the tribe, and of the city became reconciled to the slayer
if the relatives of the slain received the customary wergeld. If then
Miss Harrison says[79] that ‘so long as primitive man retains the custom
of the blood-feud, so long will he credit his dead kinsmen with passions
like his own,’ she is compelled, by her own reasoning, to admit that the
‘ghosts’ of murdered men, in the tribal wergeld system, did not revolt at
the presence of a murderer, unless he were a kinsman.[80]

Coulanges[81] implies that in addition to clan-religion there was
domestic worship. Now this domestic worship was shared by a husband and
wife who normally belonged to two different clans, and are we to assume
that if a husband slew his wife or a wife her husband, the domestic
religion would have compelled them to go into exile even when the clan
could atone by wergeld? This point we cannot decide with any certainty.
Clytaemnestra, in later legend, offers sacrifice at the tomb of her
murdered husband: her children assert, not that it is sacrilegious, but
only that it is unavailing as a placation. We think that the tribal penal
code did not demand the exile penalty for homicide of this kind and would
have permitted wergeld. But within the genuine kindred, and especially
within the small kindred, bloodshed, particularly parricide, was from the
earliest times a serious religious offence.

There remain for discussion two problems which most writers regard as
intimately related—namely, the origin and evolution of the Erinnyes, and
the source and significance of the ritual of homicide-purgation.


THE ERINNYES AND PURGATION

The Greek word ἐριννύς is probably an adjective meaning ‘angry,’ and
should therefore be applicable to any spirit, whether ghost or god. But
Miss Harrison[82] believes that the word was originally an epithet of a
ghost or _ker_. The following is a summary of her opinions: The _Keres_
(κῆρες), she thinks, were primarily ghosts: they were neutral potencies
who might be either quite harmless[83] or baleful bacilli, or good
spirits.[84] The _word_ Erinnys was originally probably an epithet of
_ker_, and denoted a ghost-pest, a Poine. The Erinnys primarily is the
_ker_ of a human being unrighteously slain. It is the _ker_ as Poine.[85]
Thus, because it was a _ker_, the Erinnys was primarily a human ghost,
but the word came, by a process of specialisation, to be applied only
to such ghosts as are angry because they have been murdered.[86] In
Homer, she thinks, the Erinnyes have passed beyond this stage and are
‘personified (? deified) almost beyond recognition.’ They are no longer
souls, but the avengers of souls. They have even lost their exclusive
connexion with souls, and are become the avengers of the moral law, vague
equivalents of underworld Zeus and Persephone.[87]

Now Miss Harrison implicitly connects the Erinnyes with purgation, since
she asserts that ‘purification (_i.e._ purgation) is the placation of
ghosts.’[88] But in Homeric times the ghosts of murdered men would
not, she holds, accept any purgation sacrifice save the blood of the
murderer.[89] Therefore, in a certain sense homicide could be purged, and
in another sense it could not be purged in Homeric times!

Homer,[90] she says, does not understand the mystery of Bellerophon
and the Aleïan plain, but Apollodorus[91] reveals the fact that
Bellerophon slew his brother unwittingly and that he was purified by
Proetus. Apollodorus, she thinks, is unhistorical in speaking of the
purification of Bellerophon: in those old days, she says,[92] he could
not be purified. But as murder was a physical infection, Bellerophon
had to go to the Aleïan plain, an alluvial deposit which had recently
been recovered from the sea and which was not therefore included in the
‘earth’ which was polluted by his deed of blood. The fallacies of this
interpretation will become evident in the course of our reasoning. At
present we will merely point out (1) that there is no evidence for the
assertion that murder was a ‘physical infection’ in the Homeric age.
Everything that we have said about the Pelasgian wergeld system and the
Achaean protection of murder-exiles proves the contrary; (2) the plain
of wandering, if that is what Homer meant by Ἀλήϊον, (it may have been
a local place-name which conveyed to him no special meaning,) does not
imply an alluvial deposit of any kind, but possibly a special place which
known murderers, condemned to perpetual exile, were wont to frequent;
(3) Apollodorus may be unhistorical, in speaking of the purgation of
Bellerophon, but so is every Greek writer of the historical period who
attributed purgation to Achaean heroes, as Aeschylus, for instance,
does, to Orestes; (4) to explain the absence of references to purgation
in Homer by suggesting that the death of the murderer was the only
purgation of his crime, and to imply that Bellerophon was fleeing from
purgation when he fled from death to the Aleïan plain, is equivocal and
misleading. For a murderer was either purged or he was not purged; and if
a murderer was put to death in sacrifice, no one could logically speak of
him as ‘purged.’

F. de Coulanges seems also to connect the purgation rites for homicide
with the worship of the dead. In the primitive family group, he says,[93]
‘there were domestic morals. The shedder of blood was no longer allowed
to sacrifice or to offer libations or prayer or to offer the sacred
repast.... The hand stained with blood could no longer touch sacred
objects. To enable a man to renew his worship and to regain possession
of his god, he was required at least to purify himself by an expiatory
ceremony.’ This opinion implies that such rites were as old as the
domestic religion of the Family. The most serious objection to this
implication is that Homer has no genuine reference to any such ceremony.

Bury, who rightly attributes the origin of purgation rites for homicide
to post-Homeric times, nevertheless connects those rites with the worship
of the Erinnyes and of the Chthonian deities. ‘Gradually,’ he says,[94]
‘as the worship of the souls of the dead and of the deities of the
underworld developed, the belief gained ground that he who shed blood
was impure and needed cleansing. Accordingly, when a murderer satisfied
the kinsfolk of the murdered man by paying a fine, he had also to submit
to a process of purification and to satisfy the Chthonian gods and the
Erinnyes or Furies who were, in the original conception, the souls of the
dead clamouring for vengeance.’ The validity of this conception of the
origin of the Erinnyes will be examined presently. We hope also to show,
at a later stage, that wergeld and ‘pollution’ were mutually destructive.

O. Müller holds[95] that the religious rites of expiation and
purification were derived from the remotest times of Grecian antiquity
and were designed to reinstate the slayer in community of worship with
his people. Confronted with the difficulty that such rites are not
mentioned in our Homeric text, Müller argues,[96] firstly, that the
reading ἁγνιτέω (= purifier) instead of ἀφνειοῦ (= rich man) in a passage
in the _Iliad_[97] was the reading of the original text of Homer. He
quotes a scholiast’s opinion to the effect that there is an anachronism
in the verse. Secondly, he holds that the absence of Homeric references
to purgation for homicide is not surprising, because the poet’s hearers
would have taken it for granted as a matter of course! We must leave
our readers to weigh for themselves the value of this argument. The
opinion of the scholiast, if it proves anything, proves that there was an
obviously false reading interpolated in the text.

Müller conceives[98] purgation (καθαρμός) as a form of expiation
(ἱλασμός) which is closely related to the worship of the dead and the
Erinnyes, and believes that it originated in the idea that the life of
the manslayer (and sometimes the lives of all his clansmen) must be
sacrificed in atonement for homicide. Such a sacrifice, he thinks, came
to be obviated in course of time, either (1) by the substitution of a
surrogate victim, or (2) by the degradation of the murderer to a state
of servitude, or (3) by wergeld, which was originally suggested by the
new religious custom of accepting the sacrifice of an animal in lieu of
the death of the slayer.[99] Regarding the Erinnyes as Chthonian deities
to whom this expiation is offered, he is surprised to find that, in the
_Eumenides_ of Aeschylus, the purgation of Orestes does not lay to rest
the wrath of the Erinnyes. To obviate this difficulty he falls back on
the obviously absurd assumption that Aeschylus, for dramatic purposes,
presents Orestes as not completely purified.[100] The text of Aeschylus
and the text of Homer furnish the best refutations of such hypotheses.

Glotz is quite definitely of the opinion, and in this we agree with him,
that purgation for homicide was unknown to the Greeks of Homeric times.
In Homer, he says,[101] we find traces of a purely physical cleansing
which is required as a preliminary to sacrifice: but such words as
μιαίνω, μιαρός and μιαίφονος refer to the victim, not to the slayer.[102]
Homicide is not a religious offence: the murder exile, received without
scruple,[103] eats at the same table as other guests, and takes part in
libations and in prayers. The first genuine instance of purgation for
homicide occurs in the _Aethiopis_ of Arctinus of Miletus (750-700 B.C.),
and the practice continued to develop until it reached its complete
systematisation in the time of Dracon.[104] ‘Its development,’ says
Glotz, ‘coincides with the disappearance of patriarchal clans and the
progress of city life.’ The purgation-system mediated the transition
from ‘private vengeance’ to ‘social justice.’ It was derived, he
thinks,[105] from the Semites. Before its advent in Greece, the Greeks
had long practised Chthonian rites, upon which, so to speak, it was
easily grafted, such rites, for instance, as that which accompanied
cursing or swearing, a rite in which ‘purging’ water was thrown over
the hands of those about to swear,[106] or that which was associated
with solemn reconciliations after feuds or enmities.[107] Hence, says
Glotz, it came about, by a natural transition, that in historical times
the preliminary pleas on oath of the accuser and the accused in cases
of homicide were taken at the altar of the Erinnyes, and it was at this
altar that sacrifice was offered by the defendant acquitted of murder
by the Areopagus and by the returned exile who had paid the penalty of
involuntary homicide.[108]

Returning to Miss Harrison’s theory of the Erinnyes, we are of the
opinion that the epithet ἐριννύς was originally equally applicable to all
supernatural beings, whether ghosts or gods, but that before the time of
Homer the epithet came to be limited to such divinities as were, for some
reason, difficult to placate by the ordinary magic of placation.[109]
The elemental forces which were deified, as we think, before the advent
of the Achaeans, developed, under Achaean influence, a neutral and
capricious nature, varying in moods of sun and shower, of calm and
storm, like ‘typical men of the other world.’ Like men, they could be
placated by gifts and by hospitable entertainment. But the ghost-worship
which characterised the Pelasgian stratum was of a much more gloomy
and terrible nature. Miss Harrison thinks[110] that Homer exalted the
Olympians but caused the bad aspect of Chthonian deities and ghosts to be
unduly emphasised. Though the Erinnyes are relegated by Homer to Erebus,
yet he does not think of them as ghosts, but as minor deities who carry
out instructions from their superiors. They are connected with Zeus (of
the underworld), with Ge (the Earth), with the Sun (who, like Zeus,
has an underworld aspect, for he too goes down every evening to Hades
in the west), and with the Moirae who, though originally agricultural
personifications of the Seasons, rapidly became synonymous with Destiny
itself, and in Homer are superior even to Zeus.[111] It is especially in
the ceremonies of cursing and of swearing that these Chthonian powers
are invoked in Chthonian ritual. We have already[112] indicated Miss
Harrison’s error in associating the Achaeans exclusively with Olympian,
and the Pelasgians with Chthonian ritual. She is, we think, equally
mistaken in assuming that the pre-Achaean Erinnys was an irrational
being, predominantly animal in form, which had to await the coming of
the humanising Achaeans before it assumed a respectable ‘personified’
shape. We think the Pelasgians retained quite faithfully the original
anthropomorphic conception of the Erinnyes, while the Achaeans merely
regarded them as minor deities who obediently submitted to ‘Olympian’
authority. The precise nature of the Pelasgian cult of the Erinnyes in
Homeric Greece is rather difficult to define. In the Pelasgian religion
there was but a small and indescribable difference between ghosts and
gods, between minor deities and greater deities. It is probable that the
Pelasgians practised, occasionally, Olympian ritual—for instance, at
public festivals and in civic worship; but in the local domestic worship
of the clan, the phratry, and the tribe, their placation of ancestors
gave a predominantly Chthonian tone to their whole religious outlook.
Hence their Erinnyes, also, though originally spirits which were angry
but placable, easily became spirits, whether ghosts or gods, whose wrath
was almost implacable. But the Achaeans did not realise the nature
of these Erinnyes: and hence in Homer they almost assume the role of
ministering spirits, sent to warn or to punish. They are not wicked and
malicious, like the Harpies or the Sirens. Thus they are much more human
and less, so to speak, diabolical than the real Pelasgian Erinnyes, and
this is, perhaps, what Miss Harrison meant to convey when she said[113]
that ‘in Homer they are _personified_ beyond recognition.’ The Achaeans
could not appreciate the terrible potentialities of the angry ghost-god
of the Pelasgians, for the simple reason that they did not worship the
ghosts of departed ancestors or any kind of ghosts.

It would, however, be a serious error to suppose that the Pelasgian
Erinnyes were as formidable and as implacable as the Erinnyes of
post-Homeric times. Moreover, it is gratuitous to assume that ghosts were
primarily and necessarily angry because they had been murdered. There
is no evidence that homicide in Pelasgian times generated implacable
Erinnyes. We admit, with Miss Harrison,[114] that primitive man credits
his dead kinsman with passions like his own. But we have already pointed
out[115] that if the passions of primitive man are checked and controlled
by a tribal society which tramples upon individual instincts, and acts in
a collective capacity, if wergeld, according to tribal and early civic
law, permits a slayer to remain at home and guarantees him immunity from
vengeance while his hands are still wet with blood, we cannot reasonably
ascribe to ‘dead kinsmen’ a fierce and implacable desire for vengeance.

How comes it then, we may ask, that so many writers regard the evolution
of early Greek blood-vengeance, and a corresponding evolution in the
blood-thirst of the Erinnyes, as a transition from the wild to the
tame, from the fierce to the gentle, from the barbarously savage to the
rationally civilised? The reason is twofold. First of all, previous
writers have not distinguished between the tribally controlled Pelasgians
and the bellicose Achaeans, and have therefore misinterpreted the text
of Homer. Secondly, many writers have regarded the dark age of chaos
of post-Homeric Hesiodic days as a valid picture for early Greece as
a whole. This confusion has not only affected modern writers, but it
also affected the Greeks of historical times. The various legends of
post-Homeric times came to be regarded as a proper medium for the
interpretation of Homeric saga. The Athenians of the Periclean age
were compelled to regard as barbarians their forebears of pre-Draconian
times. It is most important to bear this point in mind, in view of our
subsequent analysis of homicide in Attic tragedy. We do not assert that
all the legends of Attic tragedy are ‘unhistorical.’ We shall see that
in Euripides many legends suggest a reference to a period which we may
describe as Homeric or, at least, pre-Hesiodic, and are so faithful a
reproduction of that age that they must be either attributed to the
most skilful conscious archaising on the part of the dramatist, or
regarded as genuine legends which had been transmitted with the least
possible adulteration. But most of the legends which we find in the Attic
tragedians and in the later epic and prose writers are either adulterated
saga, or inventions framed in imitation of such saga. To base a theory of
social or religious evolution on such legends is obviously to build upon
sand.

As an illustration of the confusion which may thus arise, we will cite
the legend of the Boeotian Athamas which is given by Herodotus[116] and
by Pausanias.[117] Pausanias says that Athamas, King of Orchomenus, slew
his son Learchus after having made an abortive attempt to sacrifice his
son Phrixus to Zeus Laphistius on a neighbouring mountain. Herodotus,
however, says that Phrixus was slain by Athamas, and that, as a
punishment for this act, an oracle decreed that the Achaeans of Thessaly,
to whom Athamas had fled, should purge their country by slaying Athamas
in sacrifice. When they were on the point of offering up Athamas, as
a ‘scapegoat’ for _their_ sins, Cytissorus, son of Phrixus, arrived
from Colchis and saved him! The natural avenger of Phrixus became the
deliverer of his slayer, even in defiance of the oracle! The gods, now
seriously annoyed, forbade the descendants of Cytissorus to enter the
Prytaneum of the city, and a mock human sacrifice was regularly offered
to make amends to the gods for their loss. We believe that this legend is
merely an attempt to explain two mock human sacrifices which survived, in
Boeotia and in Thessaly, in historical times, and that the fact of their
contiguity led to the association of Athamas with Phrixus in the legend.

Stories of this kind have suggested the theory that the rites of
homicide-purgation originated in human sacrifice: but they are merely
aetiological. Moreover the survival, in historical times, in barbarous
countries on the outskirts of Greece, of actual human sacrifice, and the
mock sacrifices of human beings which were offered at certain festivals
in various places, helped to confirm what stories of actual human
sacrifice in post-Homeric legend, and stories of bloodshed which could
be interpreted as human sacrifices in the Homeric poems, all seemed
to suggest, namely, the opinion that all the Greeks of pre-Draconian
days practised human sacrifice and were only induced to cease from the
practice by the device of a surrogate victim. But there is no trace of
real human sacrifice in Homer, certainly no trace of the sacrifice of a
murderer’s life to gods who demanded it.

We shall see later that, in the Apolline code, death was probably the
invariable penalty for kin-slaying,[118] and there was no ‘purgation’:
but in other cases purgation was possible, and in the purgation ceremony
an animal was slain. The conclusion which is suggested _prima facie_
by these facts, namely, that at one time human sacrifice was the only
purgation for homicide, is not necessarily correct. We believe it is
incorrect. We agree with Glotz[119] in deriving the purgation rite from
Chthonian sacrifice in its general aspect. In such sacrifice, originally,
human beings were probably offered, prior to, contemporarily with,
and even subsequent to, the adoption of animal sacrifice. We cannot
legitimately assume that the latter supplanted the former. Glotz points
out that religion, being conservative, tends to preserve in ritual
elements which civilisation has abandoned. Hence arose the mock-rites of
human sacrifice which took place in historical times.

The belief that homicide-purgation originated in the sacrificial slaying
of the murderer was encouraged by the similarity which existed between
the rites of homicide-purgation and the ordinary ritual of Chthonian
expiation. We shall see later that, in the ceremonial of purification
which was applied to persons guilty of homicide, from the seventh century
B.C. onwards, the blood of a slain animal was poured over the hands of
the slayer, and allowed to flow away into the sea or into a running
stream. Thus, homicide-purgation (καθαρμός) easily came to be regarded
as a kind of expiation (ἱλασμός); but it differs fundamentally in meaning
from expiation, inasmuch as it is symbolical of the fact that a social or
religious obligation has been discharged, rather than of the fact that
it is being thereby discharged. The sacrifice of an ox or a sheep or a
ram to a god or a ghost was _in itself_ a payment or a retribution. But
homicide-purgation (καθαρμός) was never permitted _until_ the slayer had
re-established his normal social equilibrium, had suffered the penalty
prescribed by law, namely exile, temporary or perpetual, and was ready
to resume religious communion with his fellow-men. Since, therefore,
homicide-purgation was rather a symbol of reconciliation than a medium
of expiation, it was more closely allied to the rites which accompanied
the swearing of oaths,[120] the giving of pledges and the making of
contracts. The animal on which an oath was sworn could not be eaten: so,
too, the pig or the lamb by whose blood a murderer was ‘cleansed’ could
not be eaten. Now it is unfortunate that such ceremonies, which were
really symbolic of reconciliation, should have been so similar to the
general ritual of religious expiation that they could easily be confused.
There is a vast difference in meaning between reconciliation and the
aversion of evil, yet all these ideas were confused in the general system
of Chthonian ritual. As an illustration of this confusion we may cite
a passage from Vergil, in which is described a rite which is really an
‘aversion of evil,’ a kind of purgation by anticipation. Urging the
farmer to be religious in the interest of his crops, he says[121]:

    cui[122] tu lacte favos et miti dilue Baccho,
    terque novas circum felix eat hostia fruges.

The milk, honey and wine here mentioned are the characteristic offerings
in the placation of ghosts.[123] The rite was easily transferred to
Demeter or Ceres, the Chthonian goddess, because of the natural tendency
of Chthonianism to identify the ghost with the god. The ceremony of
carrying a victim round the crops was not a symbol of atonement for
moral guilt so much as an aversion of quasi-physical evil spirit which
caused sterility.

Athenaeus,[124] describing the ‘purgation’ of an Arcadian city which
was necessitated by the visit of certain citizens from a town which was
polluted by bloodshed, says: ‘They made purgation of the city, carrying
“victims” round the city territory.’ The similarity of this ceremony to
the ‘aversion’ rite described by Vergil is obvious. Yet this ceremony
is somewhat different from the purgation of an actual homicide, which
we shall describe more fully later.[125] In the former a number of
victims are slain; in the latter, only one. Now, if homicide-purgation
originated in human sacrifice, and if, as Müller maintains,[126] wergeld
was suggested to men by the _de facto_ acceptance, on the part of the
gods, of an animal substitute, why was the number of animals sacrificed
in homicide-purgation limited to _one_? Why did men not offer to the gods
at least the _saraad_ or insult-price,[127] which generally consisted
of a number of animals? The sacrifice of only one animal in such a
ceremony cannot be explained by Müller’s hypothesis. It can, however,
be made intelligible if we assume a direct derivation of the rites of
homicide-purgation from the ritual which accompanied solemn oaths and
reconciliations. In such a ritual, only a single victim was slain: its
death was a kind of inductive symbol of the fate of its slayer, if he
ever proved false to his oath. But in ceremonies of general purgation,
such as Athenaeus describes, there was an element of expiation, or
aversion, and hence there was no limit to the number of victims, for
there was no such limit in expiatory sacrifice of any kind.

We shall see later how, in historical times, purgation for homicide was
inadmissible in cases of kin-slaying, unless the dying man forgave; even
then the slayer had to be exiled for one year before he could be purged
in his homeland: in cases of wilful murder, purgation of the slayer in
his own country was impossible at any time, but was possible, if not
compulsory, abroad: in cases of manslaughter, purgation could take place
at home when the conditions of exile and of the ‘appeasement’ of the
slain man’s relatives had been fulfilled. From such regulations we can
obviously infer that purgation was a symbol of reconciliation, but not an
expiation of guilt.


THE HOMERIC AND THE TRAGIC ERINNYS

We must now contrast what we may call the Homeric Erinnys with the
Erinnys of post-Homeric times and with the ‘tragic’ Erinnys. In
the course of our discussion we hope to suggest some reasons, more
satisfactory, even if they be more complex, than that which Müller[128]
gives, for the refusal of the Erinnyes in the Oresteian legends of Attic
tragedy to recognise the purgation of Orestes until they assume the rôle
of Semnai Theai or Eumenides. In our view there are just two reasons for
this refusal: one is the fact that the purgation-rites for homicide were
a symbol of reconciliation, not with ghosts, but with gods: the other
is the fact that the Erinnyes of Attic tragedy are a complex product,
reflecting the attitude of the relatives of the slain at different
periods, and from different points of view, in the post-Homeric era. We
shall see later that there must have been several different variants of
the Oresteian legend. The act of Orestes would have been approved or
condemned according as social custom, at any given epoch, recognised
the right of Apollo to command or to justify in advance the slaying of
Clytaemnestra, or the right of a State court to approve, or at least to
condone, an act which tribal society would have probably condemned.

We may thus summarise what we conceive to have been the different stages
in the evolution of the ‘tragic’ Erinnyes. We must distinguish clearly
between (1) the Pelasgian Erinnys; (2) the Achaean Erinnys; (3) the
post-Homeric pre-Apolline Erinnys, and (4) the Apolline or historical
Erinnys. In Homer there is a fusion of the first and second conceptions.
In Attic tragedy there is a most disheartening confusion of all four
conceptions. We must remember that the Erinnyes were not ordinary deities
possessing a stereotyped cult. Having attained divinity largely through
the personification or deification of an abstract cultus-epithet,
their nature was liable to vary according to men’s interpretation of
the meaning and origin of the epithet, and their forms could be freely
fashioned by the minds of poets and of legend-makers.[129]

(1) In regard to the Pelasgian Erinnyes, we have suggested that they were
divinities of different degrees of rank in the Chthonian religion. They
did not visit their wrath on a murderer if he paid the tribal penalty, or
even on the slayer of a kinsman, unless he remained in contact with the
domestic worship of his dead relative.[130] There was no ‘purgation’ for
homicide: because homicide was not yet an offence against _the greater
gods of the State_. The exile or death of a murderer or the payment of
wergeld appeased, of itself, the Erinnys of the slain: to refuse to
accept wergeld was impossible, in the organisation of the tribe.

(2) The Achaean Erinnys was an eclectic product. It was not Homer who
personified[131] the Erinnys because it was already personified, though
in that vague collective nameless manner in which alone a cultus-epithet
can be deified. The Achaeans conceived the Erinnyes as gods. For them
there are only gods and men: there are no ghosts or abstractions in the
galaxy of supernatural beings. The Achaean Erinnys has lost its connexion
with ghost-terror, though it retains sufficient traces of its Chthonian
importance to be treated with considerable respect. It is merely a
subordinate deity which executes the decrees of Olympian gods, but its
association with Zeus and the Moirae suggests the greater dignity which
it enjoyed in Chthonian religion. The connexion of the Erinnys with
curses is essentially Chthonian. All castes in Homer use the ritual of
swearing, but we cannot say how far the Achaeans understood the ideas
underlying the rite. The curse of a father or a mother was particularly
terrible in the Pelasgian domestic religion. But we cannot suppose that
the Achaean respect for parents, or their dread of curses, was as great
or as profound as that of the Pelasgians. The Achaean Zeus himself hurled
to Tartarus his aged father Kronos.[132] Hence the Homeric references to
parents’ curses, such as are found in the stories of the Achaean Phoenix
and the Achaean Meleager, indicate probably an assimilation of Pelasgian
ideas.[133] But the literary heirloom which the poet of the Achaeans
bequeathed to Greece helped to beget a false conception of the Achaean
Erinnys in the minds of later poets. The Achaean mode of blood-vengeance
and their desire of blood for blood caused later legend-makers to
attribute a veritable blood-thirst to the Erinnyes of murdered Achaeans.

(3) The post-Homeric pre-Apolline Erinnys—a divine being whose nature
can only be inferred by the logic of elimination—reflects in a more
emphatic manner the blood-thirst of the slain. In the relaxation of
Achaean military discipline which followed the Trojan war: in the great
invasions and migrations, and in the demoralisation of clan-control,
in a chaotic society such as Hesiod describes,[134] where force is
the only law, and justice, virtue, honour, hospitality, loyalty and
fraternal love have vanished from the earth, the Erinnys came to assume
a diabolical aspect: murder was confused with vengeance; the anger of
impotent avengers became implacable: and inexorable hatred was attributed
to the Erinnyes of the slain. At this period the gods were credited
with an approval of collective punishment[135] such as men themselves
practised. Nemesis became a god.[136] Kronos is now said to have devoured
his children, and Rhea, their mother, inflamed the Erinnyes against
him.[137] The blood-offerings which from time immemorial had been laid
at the tomb of the dead were now interpreted, not as a resuscitation of
the dead for purposes of necromancy or for the production of fertility,
but, in the case of murdered dead, as the satisfaction of an unquenched
thirst for blood. Curses became more frequent and more terrible than in
days when tribal law or military control rendered recourse to religious
sanctions less necessary. To this period we attribute the prevalence of
customs of which some survived to historical times, while others soon
became obsolete: we refer to the custom of writing curses on tombstones,
the custom of planting a spear in the grave,[138] and the custom of
μασχαλισμός, or partial mutilation of a corpse.[139] To those days,
rather than to historical Greece, apply the words of the Chorus in the
_Electra_ of Sophocles[140]:

    The curse hath found, and they in earth who lie
    Are living powers to-day.
    Long dead, they drain away
    The streaming blood of those who made them die.

In the _Ion_ of Euripides[141] we are told that around the Omphalos, or
Sacred Stone, were figures of the Gorgons. One editor[142] of this play
remarks that these figures suggested to Aeschylus the dramatic forms of
his Erinnyes. We are much more inclined to believe this, than to suppose,
with Miss Harrison[143] or with Verrall,[144] that Aeschylus invented
the dramatic form of the ‘tragic’ Erinnys. We shall see later[145] that
Aeschylus conceived the Erinnyes as Titans, as rebels against Zeus and
the Olympians. Whence came this rebel-rôle of the Erinnyes? The answer
will, perhaps, be more intelligible if we explain the nature of the
Apolline or ‘historical’ Erinnys.

(4) We are not concerned here with the nature of the cult of the Erinnyes
in historical Greece. We seek rather to describe the Erinnyes as they
were moulded in the minds of poets and of legend-makers in accordance
with conceptions of homicide which were modified by the Apolline doctrine
of ‘pollution’ and ‘purgation,’ and by the evolution of state-control.
We must postpone to later parts of our work the details of our theory,
and the more complete demonstration of its validity. We will merely
give here, as it were by anticipation, a summary of our conclusions.
The doctrine of ‘pollution’ which, as we think, came to Greece about
700 B.C., and which was gradually adopted in most Greek states under
the rule of the ‘aristocracy of birth,’ declared the homicide to be an
enemy to the gods of the State. His presence, in his native State, or in
the country of the slain, brought upon the whole community plagues and
pestilences and all those evils which the primitive mind attributes to
divine anger. In our opinion, such a doctrine was incompatible with any
further continuation of the wergeld system which had survived the age of
chaos. The abolition of wergeld, at the dictate of Apollo, the national
prophet-god of ‘aristocratic’ Greece, was a change which struck at the
root of the great tribal principle of retribution to the relatives of
the slain. Before the new doctrine acquired the prestige of traditional
custom, we should expect that a feeling of revolt would have manifested
itself in the sentiments of the old kindred of the clans. Such a revolt
would have been reflected, in legend, as an attribute of the Erinnyes
of the slain. This conception of a revolting Erinnys will explain the
Titanic rôle of the Furies in Aeschylus, and their refusal to recognise
the purgation of Orestes by Apollo.

There was another factor, too, which may have helped to give vitality and
realism to the rebellious rôle of the ‘tragic’ Erinnyes, especially in
Euripides. We shall see[146] that the Apolline doctrine did not abolish
every form of compensation. The relatives of a person involuntarily slain
were entitled to ‘appeasement,’ were, perhaps, permitted under certain
conditions to enter into what is known as ‘private settlement’—though
usually before ‘appeasement’ a certain period of exile was necessary.
Now if, as some maintain,[147] the ‘appeasement’ depended entirely on
the will of the relatives, and if the relatives had to be unanimous in
accepting the gifts or presents which constituted ‘appeasement,’ it is
clear that one single relative could have extorted enormous sums of
money, or otherwise have compelled the manslayer to abide in perpetual
exile. We shall argue, later, that the regular duration of exile for
manslaughter was one year, and that this custom implies the influence
of local control, on the part of judges or magistrates, directed
against the right to refuse ‘appeasement’ on the part of a slain man’s
relatives. Such a control would naturally have produced irritation
and dissatisfaction which, again, might have been reflected in men’s
conception of the Erinnyes. We shall see that at least one legend of
Orestes conceived his deed as involuntary kin-slaying. It was probably
this legend which represented some of the Furies as still implacable when
the Areopagus trial had declared Orestes ‘not guilty,’ or rather, immune
from further punishment.[148]

The main difficulty connected with the ‘appeasement’ of the Oresteian
Erinnyes arises from the fact that they are not unanimous in their
opinions about Orestes, and that some of them—the Erinnyes of
Clytaemnestra—are in violent conflict with the official opinion of
Apollo. At a later stage we shall be in a position to explain this
difficulty more clearly. At present we will merely cite a law of Plato
which is probably based on the old traditions of patriarchal tribes (as
they were modified in course of time by Apollinism), and which forbids
the slayer of a kinsman who slays under the influence of passion,
ever to return to domestic communion with his kindred, even though he
may return to his native state and undergo ‘purgation.’ We refer to
this law because it is possible to interpret the act of Orestes, from
Apollo’s standpoint, not as fully justified but rather as in a sense
involuntary, being extenuated by a religious command, as ‘passion’
would have extenuated it. Plato says[149]: ‘If a father or a mother
in a passion kills a son or daughter ... let them be exiled for three
years and be “purged,” but, on return, let the husband be divorced from
the wife and the wife from the husband ... and not dwell in communion
with (the family) ... or share with them in sacred rites.’ Now, in the
Apolline system it is probable that the murder of a husband by his wife
was of equal gravity with kin-murder which was punishable with death.
Coulanges points out[150] that the wife belonged to the domestic religion
of her husband, even though she did not belong to his kindred. In the
Pelasgian wergeld system husband and wife are ‘strangers’ in matters of
homicide; but in the Apolline religious system they are members of the
same hearth and home. Moreover, in historical times failure to obey the
Apolline laws laid the delinquent open to a charge of impiety, for which
the penalty of death might be inflicted. There is a suggestion of these
legal viewpoints in Apollo’s attitude when he tells[151] the Erinnyes
that Clytaemnestra, the murderess of her husband, was justly slain, and
that Orestes would have merited death if he had not slain her; and in the
answer of the Erinnyes concerning the act of Clytaemnestra, that ‘her
slaying was not kindred bloodshed’[152]; and that Orestes, the slayer
of his mother, must be pursued until he dies![153] Now, Plato suggests
that in the Apolline code exclusion from domestic religion attended the
‘extenuated’ slaying of a parent by a son, even when the dying parent
formally ‘forgave.’[154] Apart from the impossibility of the supposition
of a formal ‘forgiveness’ of Orestes on the part of Clytaemnestra, it is
clear that the Erinnyes of the Apolline era would have naturally objected
to the presence of Orestes in the home of his fathers. Thus they say, in
the _Eumenides_[155]:

    His mother’s blood upon the earth he spilled.
    Shall he in Argos dwell, his father’s home?
    What phratry-altar can him e’er receive?
    What common lustral water can he share?

But Orestes, fearing the Erinnyes of his father who naturally and
legally, in the Apolline system, pursue the relative who fails to avenge,
and who is ‘polluted’ almost equally with the murderer, cries out, in the
_Choephoroe_[156]:

    The darkling arrow of the dead that flies
    From kindred souls abominably slain
    Should harass and unman me till the state
    Should drive me forth, with brand upon my body.
    So vexed, so banished, I should have no share
    Of wine or dear libations, but unseen
    My father’s wrath should drive me from all altars.

Thus, the Erinnyes seem to reflect the conflict of opinions and of
sentiments which would frequently have arisen amongst the relatives of
the slain concerning the guilt of a kinsman who had slain a kinsman.
They also, unfortunately, suggest the co-existence of conceptions of
blood-vengeance which are really to be attributed to different periods of
time and to widely different types of civilisation.


FOOTNOTES

[1] _Supra_, p. 80 ff.

[2] _Supra_, p. 78 ff.

[3] _H. and H._ p. 253.

[4] _Op. cit._ p. 251.

[5] P. 252.

[6] _Op. cit._ p. 135.

[7] P. 126.

[8] _Prolegomena_, p. 53, pp. 161-2.

[9] _Prolegomena_, p. 64.

[10] _Eumenides_, p. 106.

[11] _Ib._ pp. 118-120.

[12] _H. and H._ chap. vii.

[13] _De R. N._ i. 151 ff.

[14] _Eumenides_, 803-6.

[15] _Ib._ 833-4.

[16] _Ib._ 860-3.

[17] _Ib._ 905-10.

[18] _Eumenides_, 923-7.

[19] _Ib._ 939-49.

[20] _Ib._ 957-62.

[21] _Ib._ 977-87.

[22] _Four Stages of Greek Religion_, p. 43.

[23] _Infra_, p. 149 ff.; Glotz, _op. cit._ pp. 156, 182.

[24] See, _e.g._, Haddon, _Magic and Fetishism_; Burne, _Handbook of
Folk-lore_; and Frazer, _Golden Bough_, vol. i. et passim.

[25] ii. 40.

[26] ii. 42.

[27] Euripides, _Bacchae_, 111, 137.

[28] Aristotle, _Poetics_, ch. iv. (1449a); see, however, Ridgeway,
_Origin of Tragedy_, passim.

[29] See _infra_, pp. 120 ff., 298 ff.

[30] Farnell, _Cults of the Greek States_, vol. ii. p. 650.

[31] viii. 41.

[32] F. de Coulanges, _op. cit._ pp. 35-40.

[33] _Op. cit._ p. 28.

[34] _Themis_, pp. 335, 447, 461.

[35] _Op. cit._ pp. 36, 160.

[36] Herodotus, i. 131.

[37] See, _e.g._, Cic. _Tusc. Disp._ i. 26, 65; Plato, _Rep._ ii. 378
A-D, 380 D, 381 D.

[38] _H. and H._ p. 262.

[39] Chadwick, _Heroic Age_, p. 418; Leaf, _H. and H._ p. 263 ff.;
Harrison, _Themis_, p. 491, _Proleg._ p. 299; Ridgeway, _J.H.S._ 1898, p.
34.

[40] _Il._ xv. 190 ff.

[41] Leaf, _H. and H._ p. 261 note.

[42] ii. 52; see Leaf, _H. and H._ p. 273.

[43] Harrison, _Proleg_. p. 35 and note.

[44] _Op. cit._ pp. 199-200.

[45] Leaf, _H. and H._ p. 273.

[46] _Ib._ p. 263.

[47] _Themis_, p. 134 note.

[48] _H. and H._ p. 261.

[49] _Ib._ p. 267.

[50] _Ib._ p. 267.

[51] _Supra_, p. 21.

[52] _Cf._ Halliday, _Greek Divination_, p. 242 ff.; Daremberg and
Saglio, Art. _Magia_.

[53] _Od._ xi. 23 ff.

[54] _E.A.G._ ch. vii. p. 494 ff.

[55] See, _e.g._, _v._ 153.

[56] _Od._ xi. 23-37.

[57] _Ib._ 51-2.

[58] _Ib._ 72-5.

[59] _Ib._ 90.

[60] _Ib._ 147-8.

[61] _Ib._ 153.

[62] _Proleg._ pp. 74-5.

[63] _Themis_, pp. 335, 445 ff.

[64] xix. 250-268.

[65] _Cf._ _Il._ iii. 268-292. So the Trojans offer black lambs to Zeus
and a black sheep to Ge, _Il._ iii. 103, 119, 246, 273, 292, 310; iv.
158. See Glotz, p. 156.

[66] _E.A.G._ p. 678.

[67] _Ib._ p. 642.

[68] _E.A.G._ p. 549.

[69] x. 520 ff.

[70] Ridgeway, _E.A.G._ pp. 328-9, 494-549.

[71] Harrison, _Themis_, p. 55.

[72] 226.

[73] _Georg._ iv. 545 ff.

[74] _Greek Tribal Society_, p. 6.

[75] See _supra_, p. 8.

[76] _Supra_, p. 9.

[77] _Op. cit._ p. 125.

[78] _Il._ ii. 669.

[79] _Proleg._ p. 64.

[80] _Infra_, p. 121.

[81] _Op. cit._ p. 52.

[82] _Proleg._ p. 214.

[83] _Ib._ p. 166.

[84] _Ib._ pp. 175, 184.

[85] _Ib._ pp. 213-214.

[86] _Proleg._ p. 215.

[87] _Ib._ p. 216.

[88] _Ib._ p. 53.

[89] _Ib._ p. 220.

[90] _Il._ vi. 200 ff.

[91] ii. 2. 3.

[92] _Proleg._ p. 221.

[93] _Ancient City_, pp. 125-6.

[94] _H. of G._ p. 172.

[95] _Eum._ p. 106.

[96] _Eum._ pp. 104-5; _supra_, p. 52.

[97] xxiv. 482.

[98] _Op. cit._ pp. 112-21.

[99] _Ib._ p. 123.

[100] _Ib._ p. 133.

[101] _Op. cit._ p. 228 ff.

[102] _Il._ iv. 146, xvi. 795; xxiv. 420; v. 31, 455, 844, xxi. 402.

[103] _Op. cit._ pp. 230, 231.

[104] _Ib._ p. 232.

[105] _Ib._ p. 153; _infra_, p. 141.

[106] _Cf._ _Il._ iii. 268-270, xix. 250.

[107] _Od._ xxiv. 545.

[108] Glotz, _op. cit._ p. 155; Dinarchus, 47; Antiphon, _Her._ 11; Paus.
i. 28. 6; Apoll. Rhod. iv. 715.

[109] See _Il._ ix. 572; _cf._ Müller, _Eum._ p. 161, on the worship of
Demeter Erinnys.

[110] _Proleg._ p. 172.

[111] Leaf, _H. and H._ p. 18.

[112] _Supra_, p. 102.

[113] _Proleg._ p. 215.

[114] _Ib._ p. 64.

[115] _Supra_, p. 109.

[116] vii. 197.

[117] ix. 34.

[118] _Infra_, pp. 142, 159.

[119] _Op. cit._ p. 153 ff.

[120] _Cf._ _Deuteronomy_ xxi. 1-9. In the case of homicide by a person
unknown, the Elders and Judges go to the nearest city and taking a heifer
they kill it, and all the Elders of the city wash their hands over the
heifer, saying ‘We know not the slayer.’

[121] _Georg._ i. 344.

[122] _i.e._ Ceres.

[123] See, _e.g._, Aesch. _Persae_, 203, 220, 609-17.

[124] xiv. 22. 626.

[125] _Infra_, p. 150 ff.

[126] _Eum._ p. 123.

[127] _Supra_, p. 7.

[128] _Eum._ p. 133.

[129] _Infra_, pp. 298 ff., 307, 366 ff.

[130] Coulanges, _op. cit._ pp. 125-6.

[131] See Harrison, _Proleg._ p. 215.

[132] _Il._ viii. 479, xiv. 203.

[133] _Supra_, p. 67 ff.

[134] _W. and D._ 182-193; _cf._ Glotz, pp. 226, 227.

[135] Hesiod, _ib._ 240.

[136] Hesiod, _Theog._ 223.

[137] _Ib._ 473.

[138] Glotz, p. 70; Dem. _contra Everg._ 69.

[139] Glotz, p. 62; Harrison, _Proleg._ p. 70.

[140] 1420 ff.

[141] 224.

[142] Bayfield.

[143] _Proleg._ p. 231.

[144] Introd. to _Eumenides_, p. xxxvii ff.

[145] _Infra_, p. 298 ff.

[146] _Infra_, pp. 143, 173 ff.

[147] _e.g._ Glotz, _op. cit._ p. 316.

[148] _Iph. Taur._ 965; see _infra_, Bk. III.

[149] _Laws_, ix. ch. 9.

[150] _Op. cit._ p. 54.

[151] Aeschylus, _Eumenides_, 213 ff., 617 ff.

[152] _Ib._ 212, 608.

[153] _Ib._ 210, 230.

[154] _Laws_, ix. ch. 9.

[155] 655-660.

[156] 285 ff.




BOOK II

FROM HOMER TO DRACON




CHAPTER I

SOCIAL AND LEGAL TRANSITIONS

    SECTION I: Political changes in post-Homeric times: fall of
    Achaean Empire and its causes: post-Homeric migrations: Achaean
    survivals: the Hesiodic age of chaos: tribal stability and
    decay: evolution of the Attic State: aristocracy and democracy.

    SECTION II: Religious and legal transitions in post-Homeric
    times: Asiatic-Greek intercourse: compromise between Asiatic
    and Greek ideas adopted in regard to homicide: origin of
    Apolline purgation-system: rise of Apolline influence:
    organisation of theocratic nobles: Apollo and pollution:
    extradition: origin of the laws of Dracon: proofs of author’s
    theory from Greek legends, from Plato and Demosthenes:
    pollution doctrine and wergeld: question of ‘legality’ of
    ‘private settlement’ for homicide in historical Athens.


SECTION I

Less than a hundred years[1] after the Trojan war, and some time about
the year 1100 B.C., the great and glorious rule of the Achaeans over
Greece came to an end. ‘Greece,’ as Leaf puts it,[2] ‘relapsed from
the temporary union imposed upon it by its rulers into its normal
congeries of loosely coherent cantons.’ The Achaeans did not, of course,
entirely disappear, but they ceased to maintain that unified control and
domination over Greece which they had enjoyed for two or three centuries.
The causes of this change are variously estimated. Historical analogies,
such as that of the Normans in England and in Sicily,[3] suggest in
general the brief duration of such a hegemony. ‘The domination of a small
military caste over a large subject population contains of necessity,’
says Leaf,[4] ‘the germs of its own destruction....’ ‘The _Iliad_ itself
gives us vividly, in the portrait of Agamemnon, the inherent weakness
of all hereditary military despotisms.... The time came ... whether
through the effort of the Trojan war which had reduced their numbers, or
through lack of moral grit following on too long a tenure of power, when
the Achaeans had to cast in their lot with their former vassals ... the
group system resumed its sway and the Achaeans were drawn into it.’[5]
Ridgeway, arguing from analogous instances, attributes the decay of
Achaean vigour partly to climatic influences, partly to the enervating
effects of luxury and power. In regard to this latter factor, he says[6]:
‘It is a known fact that the upper classes in all countries have an
inevitable tendency to die out ... the dwindling of the master races in
the Mediterranean, whether they were Achaeans, Celts, Goths, Norsemen or
Turks, must be in part accounted for by the mere fact that they formed in
each case the upper and ruling class, and could therefore afford to lead
a life of luxury which was the very bane of their race.’ For our part we
are convinced with Leaf[7] that ‘an invasion of Southern Greece by rude
tribes from the north or north-west swept away the Achaean civilisation
after the Homeric age’; that a military confederation of hereditary
monarchs and nobles, such as that of the Achaeans, could not have lost
its unified control if these inherent factors of disintegration had not
been supplemented by an invasion from without.

O. Müller[8] has pointed out that in Thessaly, the former realm of Peleus
and Achilles, there existed in historical times three strata of social
and political privilege: (1) the Thessalians, post-Homeric immigrants,
who ruled directly over the central territory, including the towns of
Larissa, Crannon, Pharsalus, Iolcus. (2) Perioeci or semi-independent
vassals, such as the Perrhaebians, the Magnesians, and the Phthiotian
Achaeans, who paid tribute and were bound to assist in war. (3) Penestae,
of Pelasgian stock, like the Helots of Sparta, who cultivated the land
and served in war, who had private rights but no political privileges,
who were, in a word, serfs, but not slaves. He mentions, further,[9]
that the Achaeans of the north coast of the Peloponnese remained in towns
and fortified strongholds, keeping entirely aloof from the natives; they
were still conquerors here, though they had become vassals elsewhere. In
Sparta there appears to have been a mingling of Achaeans and Dorians.
Thucydides says[10] that here ‘the few rule over the many, having
obtained sovereignty by victory in the field.’ That this victory was not
very decisive is suggested by the view, which is commonly held,[11] that
one of the two Royal families of Sparta was Achaean. The Perioeci of
Laconia were always considered Achaeans[12]; there were about a hundred
towns of Laconian Perioeci, both inland and on the coast; they paid
tribute to Sparta, but they had a monopoly of trade and commerce, and in
the time of Nabis were liberated and federated as independent states of
the Achaean league.[13] The Helots, of course, were serfs. They tilled
the soil, and lived in hamlets which made up the greater part of the town
of Sparta. They were probably Pelasgians, though they are called Achaeans
by Theopompus.[14] Similarly, in Argos and in Corinth there are traces
of pre-Dorian peoples who can probably be regarded as including some
remnants of the Homeric Achaeans.[15]

Leaf suggests[16] that the Dorians may have followed methods of conquest
similar to those of the Achaeans, yet he has no doubt that they were
identical in social organisation with the Pelasgians.[17] ‘Hellenism
as we know it,’ he says, ‘is founded on tribal distinctions, beginning
with the great racial divisions of Dorian, Ionian, and Aeolian in the
wide sense—the general name for all which did not belong to the other
two;—passing thence to the local state, Athenian, Spartan and the rest.
Each of these again is divided internally by tribe, clan, and family
systems of the most complicated nature. Upon these ramifying subdivisions
is based the polity, and largely the religion, of classical Greece.’

This statement is of first-rate importance for our theories concerning
post-Homeric homicide. It means, in effect, that, in spite of conflicts
and migrations, the dominant Hellenic or post-Homeric Greek society was
based on clan and tribal organisations similar to those of the early
Pelasgians. The militarist Achaeans of the _Iliad_ and the _Odyssey_
must then be regarded as a solitary accidental ephemeral phantom which
crossed the stage of Grecian history never to return. The Achaeans who
survived the invasions either remained in isolated groups as in Achaea
and in South Thessaly, where they seem to have preserved for a time their
military character,[18] though they may, in course of centuries, have
evolved the mechanism of clan life: or they became subject Perioeci,
and were rapidly merged in tribal organisations, or they were accepted
as partners in government, as at Sparta, at Argos, at Corinth, and at
Sicyon, and, like the Roman _Patres minorum gentium_, developed along the
lines of tribal society. Their peculiar Homeric character disappeared:
they were Hellenised—which is to say, with Leaf,[19] that they were
‘drawn into’ the ‘group-system,’ which, after Homer, ‘resumed its sway.’

It was perhaps because of special circumstances that _Sparta_ developed
along peculiar lines of a quasi-Achaean and non-Hellenic kind. Thus,
Müller holds[20] that the Spartans represent a continuation of the
heroic age, a system of military rule over agricultural classes. So
Holm[21] says that ‘The Spartan monarchy was a continuation of that of
the Homeric age, only its authority was more strictly defined and became
gradually more limited.’ Grote,[22] criticising the opinion of Müller,
who holds that the Spartans were typical Dorians, maintains that the
‘institutions of Sparta were peculiar to herself, distinguishing her not
less from Argos, Corinth, Megara ... than from Athens or Thebes.’ Crete,
he says, was ‘the only other portion of Greece in which there prevailed
institutions in many respects analogous, yet still dissimilar.’ The
creator or inventor of the peculiar Spartan character, was, he thinks,
Lycurgus. We consider these opinions much more probable than that of
Gilbert,[23] who believes that the three Dorian tribes, known as Hylleis,
Dymanes, Pamphyloi, existed in the earlier days, at Sparta, as a social
organisation. The reference of Demetrius of Scepsis (about 100 B.C.)
to the existence of twenty-seven phratries and nine tribes at Sparta,
gives, of course, no basis for assuming their existence in post-Homeric
times. We have a special reason for emphasising the peculiarity of
Spartan institutions. A solitary reference in Xenophon[24] to a penalty
of perpetual exile for involuntary homicide at Sparta, in contrast with
the well-known penalty of temporary exile at Athens, has been taken
to justify the opinion that the murder-laws of Athens were peculiar
to herself. But, in our view, the peculiarity of Sparta[25] militates
against the validity of such a conclusion. We hope to prove more clearly
at a later stage that this conclusion is false.

The social evolution of post-Homeric Boeotia is a subject on which a wide
diversity of opinions appears to exist. Ridgeway[26] thinks that the
Boeotians were Achaeans: Leaf[27] supposes that they were Thessalians:
Müller[28] believes that they were Pelasgian Aeolians driven out of the
land which was afterwards called Thessaly, by invading Thessalians.
Leaf argues[29] that the Achaeans did not occupy Boeotia at the time
of their domination in Greece, but we do not see why they may not have
occupied that district at a later date. Bury[30] contrasts the ‘Boeotian
conquerors’ with the ‘older Greek inhabitants’ of Boeotia: Hogarth[31]
distinguishes between Aryan Boeotians and the non-Aryan Asiatic Cadmeans
of Thebes. We cannot attempt to decide between these various opinions,
and, fortunately, it is not necessary that we should do so. We have
indicated the probable fate of the Achaeans after the fall of Troy, and
for the rest we may be satisfied with the description of Thucydides.[32]

‘The country which is now called Hellas was not,’ he says, ‘regularly
settled in ancient times. The people were migratory and readily left
their homes whenever they were overpowered by numbers. There was no
commerce ... the several tribes cultivated their own soil just enough
to obtain a maintenance from it. They were always ready to migrate. The
richest districts were most constantly changing their inhabitants.’
Thucydides mentions, as rich districts, Thessaly, Boeotia and the
Peloponnese (except Arcadia). Attica, however, of which the soil was poor
and thin, enjoyed, he says, a long freedom from civil strife and retained
its original inhabitants. Hence ‘... the Athenians[33] were the first who
laid aside arms and adopted an easier and more luxurious mode of life.’
Again he points out[34] that ‘... Even in the age which followed the
Trojan War, Hellas was still in a state of ferment and settlement and
had no time for peaceful growth. The return of the Hellenes from Troy
after their long absence caused many changes; quarrels too arose in every
city, and those who were expelled went and founded other cities ... a
considerable time elapsed before Hellas became finally settled ... after
a while she recovered tranquillity and began to send out colonies.’

Glotz[35] paints a lurid picture of the homicide customs of what he
calls the Middle Ages of Hellenism (Le Moyen Age hellénique). ‘Passé,
le temps où toutes les forces du groupe se coalisaient spontanément,
instantanément, contre toute agression, d’où qu’elle vint. Le meurtrier
riche et puissant n’avait plus à craindre un aussi grand nombre de
vengeurs: il n’était plus contraint de fuir par un aussi formidable
soulèvement de haines.... Le meurtrier d’un parent pouvait avoir des
accomplices ou trouver des complaisants parmi ses plus proches....
Ainsi les homicides commis à l’intérieur d’une famille étaient moins
sûrement punis à l’époque où s’organisèrent les tribunaux de l’Etat que
dans la période précédente, où la justice du γένος avait encore toute
son efficacité.... Il y eut un moment où vraiment, dans certains cas,
le parricide n’avait rien à redouter d’aucune justice.’ The references
which Glotz here makes to the control exercised by the clan in cases
of kin-slaying are quite in harmony with our theory of the nature of
Pelasgian homicide customs, but they are quite inconsistent with Glotz’s
general hypothesis as to the nature of Homeric blood-vengeance. This
inconsistency is to be explained by the absence of that distinction
between the Achaean and the Pelasgian attitude to homicide which we have
made the basis of our reasoning. Moreover, Glotz is not quite sound in
supposing that the age of chaos began about the year 800 B.C. The date
of Hesiod is now generally regarded as approximately 850 B.C., and the
condition of things which he depicts must have existed for a considerable
time before that date. It was not a temporary or spasmodic condition of
things. Substituting, therefore, the dates 1100 B.C.-700 B.C. for Glotz’s
figures 800 B.C.-600 B.C. as the time-limits of the age of chaos, we may
accept as trustworthy Glotz’s description of the Dark Ages. He quotes a
Hesiodic passage to which we have already called attention.[36] ‘Rien
que désunion de père à enfants, d’hôte à hôte, d’ἑταῖρος à ἑταῖρος: plus
d’amour fraternel, comme jadis. Vite on jette l’opprobre sur les parents
qui vieillissent: on leur parle un langage dur et insultant, impie,
sans souci de la vindicte divine: on refuse à la vieillesse de parents
les vivres qu’on a reçus d’eux dans l’enfance: car on ne connaît que le
droit de la force.... Pas d’égards pour la bonne foi, la justice, la
vertu: au crime et à la violence tous les honneurs.’ Into this chaotic
condition, he says,[37] came the new religious doctrine of homicide as a
pollution. ‘La religion force la société à intervenir dans les affaires
de sang intrafamiliales, et la société agit non pas contre le coupable
mais contre la famille qui refuse d’agir.... Une idée nouvelle se fait
jour dans l’esprit des Grecs, l’idée de la souillure qui s’attache
à l’homicide ... la purification du meurtrier n’est pas une coutume
primitive ... n’était pas connue à l’époque homérique.’

In many such passages Glotz implies that in the Hesiodic age there was a
general weakening of tribal authority and of clan-law, a break-up of the
power of control exercised by the kindred, the phratry, and the tribe
over their members, in cases of homicide, and in other matters.[38] Yet
when Glotz comes to discuss the Solonian legislation, we find him still
speaking[39] of an anti-clan policy, of the desire of Solon to weaken the
clans. ‘Solon,’ he says, ‘fut nommé par la confiance de ses concitoyens
arbitre et législateur. Pour remplir cette double mission, il lui fallut
de toute nécessité affaiblir les γένη dans leur action extérieure et leur
constitution intime.... L’esprit même de la constitution solonienne est
opposé au classement des citoyens par γένη. L’Etat se met directement en
rapport avec les individus. Les groupes, il ne les détruit pas, il les
ignore.... Effet indirect des lois constitutionnelles, le démembrement
du γένος est le but immédiat et constant des lois civiles ... cette
signature de Solon, c’est l’hostilité envers les solidarités des vieux
temps.’ Again, he says[40] that at the beginning of the sixth century
B.C. ‘At a time when all cities had equally suppressed tribal or clan
responsibility (_la responsabilité familiale_) in common law, Athens
surpassed all others by the vigour of the blows which it struck at the
internal organisation and the civic action (_l’action sociale_) of the
clans.’ How can these apparently different view-points be reconciled? Can
we express the facts so that the apparent discrepancy will disappear?

We have seen that in post-Homeric times the long submerged group-system
of tribal society resumed its sway. Though the wars and migrations of
the period must for a time have weakened its power, yet ultimately, as
Thucydides says, ‘Hellas recovered tranquillity, and began to send out
colonies.’[41] The new doctrine of Apollo, which regarded homicide as a
‘pollution,’ was, we think, adopted about the seventh century, which was
pre-eminently the period of Greek colonisation. Henceforth the homicide
was conceived as an enemy not merely of the ghosts of those whom he had
slain but also of the gods of the new States which had evolved out of
chaos through synoekism. But Attica, almost alone of all Greek States,
was immune from the chaos of migrations and invasions and retained for
the most part its original inhabitants. Therefore Attica, more than
any other Greek State, required, for its political unification, a more
strenuous law-making, a more violent attack on the civic action of the
clan.

Yet we cannot suppose that the clans and tribes of the group-system were
destroyed in Attica any more than they were in other parts of Greece. All
through the historical era clans and tribes continued to exercise limited
powers and jurisdictions; the old ties of kindred and of neighbourhood
were maintained under the form of religious corporations long after the
group-system had lost its political power. All this is merely to say that
the old aristocracy of birth was replaced by plutocracy and democracy.
The various stages in this transition will be made clear if we give a
brief sketch of the political evolution of Attica, a sketch which is all
the more necessary because of the analysis which we shall have to give,
at a later stage, of blood-vengeance in Attic tragedy.


EVOLUTION OF THE ATTIC STATE

We need not allow ourselves to be detained by the obscure and conflicting
legends which centre round the birth of the Attic nation. Coulanges[42]
refers to the traditions concerning local kings of Attica before the
time of Cecrops. Pausanias refers to a kind of religious amalgamation
which was doubtless the concomitant of political synoekism: ‘Sacred to
Athene,’ he says, ‘is all the rest’[43] of Athens and similarly all
Attica; although they worship different gods in different townships,
none the less do they honour Athene generally. He points out that four
villages at Marathon were still in his time united in a local worship of
Apollo, and that legend attributed to Cecrops a federation of Attica into
twelve different states.[44] While Coulanges accepts the legend which
attributes to Theseus the political unification of Attica, he thinks[45]
that Plutarch[46] and Thucydides[47] are in error in supposing that
Theseus abolished the local prytanies and magistracies. ‘If he attempted
this,’ he says, ‘he certainly did not succeed; for a long while after him
we still find the local worships, the assemblies, and the kings of the
tribes.’

In theory the four tribes of ancient Attic society were Ionian tribes
which, in the days of oligarchic power, imposed their will upon the rest
of Attica. Müller[48] points out that there is a distinct change in Attic
mythology when we come to the Ionian Kings, Aegeus and Theseus. But Leaf
thinks it possible that the adoption of the four Ionian tribes in Attica
does not represent an Ionian conquest, but was due to the fictitious
self-inclusion of Attica in the Ionian race.[49] Bury holds[50] that ‘the
statesmen who united Attica sought their method of organisation from one
of those cities of Asia Minor which Athens came to look upon as her
own daughters’: that the names of the four Attic tribes,[51] Geleontes,
Aigikoreis, Argadeis and Hopletes, were borrowed from Ionian Miletus: and
that Attica was united into a single state in the period of what is known
as the life-regency (1088 B.C.-753 B.C.)

The tribal continuity of Attic life is most clearly indicated in the
excellent analysis of F. de Coulanges. The people of Attica, at the
birth of the Attic State, were governed, he says,[52] by noble clans
called Eupatridae who had abolished, about 1050 B.C., the power of an
hereditary monarchy. Some three hundred years later, these same noble
clans limited the power of the life-regent (a member of the royal family)
by insisting on an election being held every ten years. About 700 B.C.
annual election was in force, and the royal family was represented by
only one member in a government of nine archons elected from the Eupatrid
caste. These Eupatridae, who dwelt in scattered groups in Attica,[53]
created a united Attic State when they formed a confederation for the
purpose of defence and common worship. But the absence of sustained
danger from abroad and the development of mutual rivalry and internal
feuds diminished, at length, their pristine vigour.[54] Non-privileged
classes, herded together in towns and hamlets, saw in Eupatrid weakness
their own opportunity.[55] The introduction of coinage in the seventh
century and the expansion of trade and commerce led to the presence,
in Attic ports and cities, of a new nobility of wealthy merchants who
could not[56] aspire to enrolment in the exclusive Eupatrid tribes,
who could not be permitted to worship at the altars of tribal gods,
who were not, in fact, recognised as a functional element of the civic
organism. Naturally, these merchants imported new worships; they seized
on Oriental cults which, like Buddhism, excluded no caste. Conscious of
the barriers which confronted them, they often had recourse to armed
revolt.[57] The conflict ended at length upon the appointment of a
legislator who was expected to revise and to codify the laws. Dracon, the
first great Athenian legislator, certainly codified the laws, or some of
them at least. But being too loyal a Eupatrid, he failed to remove the
grievances of plebeian _nobiles_. Solon, a Eupatrid by birth, had the
advantage of being a merchant by occupation.[58] He first attacked the
large domains of the Eupatrids and their political power.[59] He assailed
their monopoly of judicial authority[60] by setting up a timocratic,
if not a plutocratic, Areopagus, as an alternative to the aristocratic
Ephetae courts, and by the institution of popularly elected Heliastic
juries which possessed at first, appellant, and later, universal
jurisdiction in Attic law. But it was only in the time of Cleisthenes,
about 510 B.C., that the four patriarchal tribes of Attica were removed
from the pedestal on which they had stood so long and which was the basis
of their political existence. Ten new tribes were created, on an entirely
novel principle of local segregation: new hero-cults arose: new priests
offered sacrifice, who were liable to annual election: and the four
Ionian tribes ceased to have any political meaning.

But they did not, therefore, cease to exist.[61] Obscure and hidden,
they still lived on. Clan-courts still sat to decide disputes regarding
property, adoption, and inheritance.[62] In the time of Demosthenes[63]
such courts imposed fines for the embezzlement of property. Homicide, in
particular, which from the eighth century onwards assumed a ‘religious,’
which is to say, a theocratic or patriarchal aspect, was in historical
times ‘purged’ and in certain cases ‘judged’ by the Ephetae and the
Exegetae who were chosen[64] from Eupatrid families.

We shall now proceed to consider the advent in Greece of that new
religious doctrine which for the first time declared the murderer to be
a sinner against the gods and debarred him for ever from his country and
his home.


SECTION II


RELIGIOUS AND LEGAL TRANSITIONS

The evidence of mythology and archaeology points so clearly to frequent
and continuous intercourse between the early Greeks and their non-Aryan
neighbours of Egypt and Asia Minor that up to quite recent years it
was possible to maintain that early Greek civilisation was derived
from African and Asiatic sources. Thus—to quote a writer easily
accessible—Mahaffy[65] held that to the Phoenicians and to the Egyptians
is to be traced ‘the prehistoric culture of Argos, Mycenae, Orchomenus
and Crete.’ There are, he thought,[66] Oriental, Assyrian and Syrian
influences in Mycenaean remains. Egypt, especially, was regarded as the
home of wealth and culture.[67] It is only in more recent years when
the explorations in Crete have shown, for example, that ‘compared with
the palace of Cnossus, the palaces of the Pharaohs were but hovels of
painted mud,’[68] that the early Aegean culture came to be regarded as
derived from an indigenous Cretan civilisation, and Minoans received
the honour which was previously accorded to the Phoenicians. It is now
recognised that the great period of Asiatic intercourse with Greece was
the post-Minoan period. The fall of the Minoan thalassocracy opened the
Aegean Sea to Asiatic traders. ‘The Phoenicians,’ says Bury,[69] ‘had
marts here and there on coast or island, but there is no reason to think
that Canaanites made homes for themselves on Greek soil.... Their ships
were ever winding in and out of the Aegean isles from north to south,
bearing fair naperies from Syria, fine wrought bowls and cups from
the workshops of Sidonian and Cypriot silversmiths, and all manner of
luxuries and ornaments: this constant commercial intercourse ... is amply
sufficient to account for all the influence that Phoenicia exerted upon
Greece.... The briskest trade was perhaps driven with the thriving cities
of Ionia, and the Phoenicians adopted the Ionian name ... as the general
designation of all the Greeks.’ In Ionia, Bury thinks,[70] occurred that
fusion of Semitic consonants with Greek vowel symbols which produced the
Greek alphabet. In close contact with the Ionian Greeks were the Lydians,
who were the first people to coin money (about 700 B.C.[71]) and who
transmitted the discovery to the Greeks and to other Asiatic peoples.
Needless to say, this discovery was of great commercial importance, and
incidentally rendered possible an accumulation of non-landed wealth. Now
Greek coinage, as Bury points out,[72] ‘was marked from the beginning
by religious associations, and it has been supposed that the priests of
the temples had an important share in initiating the introduction of
coinage. It was in the shrines of their gods that men were accustomed to
store their treasures for safe-keeping.... Every coin which a Greek State
issued bore upon it a reference to some deity.’

From these facts alone, apart from general considerations, it will be
evident how easy and natural it was that the Greeks should also have
received religious inspirations from their Asiatic neighbours.

It is very significant that the first mention, in Greek literature,
of the religious purgation of homicide occurs in an epic poem, the
_Aethiopis_, by Arctinus of Miletus,[73] who lived in the last half
of the eighth century (750-700 B.C.). In this poem we are told that
Achilles, having slain Thersites because he had ridiculed his tears
for the death of an Amazonian queen, went to Lesbos to be purified.
Glotz points out that the presence of Achilles at a sacrifice before
his purgation implies that the doctrine was not, at that time, fully
developed or understood.

Again, it is very significant that Herodotus[74] attributes to the
Lydians rites of homicide-purgation which, he says, are almost the same
as those which the Hellenes used. According to the historian, there
came to Croesus, King of Lydia, about the year 550 B.C., ‘a man, in
wretched plight, whose hands were not clean, a Phrygian by race, of
royal blood.’ ‘Having reached,’ he says, ‘the house of Croesus, this
man asked to have himself purified according to the customs of the
place, and Croesus purified him.’ After the ceremony Croesus asked his
visitor who it was that he had slain: the stranger replied that he had
involuntarily slain his brother and that, in consequence, he had been
expelled by his father and deprived of all his privileges. We shall see
presently[75] that involuntary kin-slaying could be purged abroad, in
the Greek purgation-system. We cannot conclude, because Croesus made no
inquiries prior to the ceremony as to the details of the deed of blood,
that therefore all kinds of homicide could be purged amongst the Lydians.
The very fact that the slayer requested purgation would, in the religious
atmosphere of the time, have been taken as sufficient evidence that his
deed was at least capable of being purged.

The conception of homicide as a pollution or religious offence is known
to have existed at an early date amongst the Hebrews, and we may hazard
the conjecture, though we find no express reference to the fact, that
a system of purgation was practised by the Hebrews, at least for minor
degrees of guilt. The penalties exacted for homicide amongst the Hebrews,
as amongst the Romans, were much more severe than those which prevailed
amongst the Greeks. We have seen[76] that in the normal operation of
homicide-purgation no religious ‘cleansing’ was valid while the civic
penalty remained unpaid. In Roman law, death was the penalty prescribed
for murder and for manslaughter: but for justifiable or justifiably
accidental homicide[77] there was no punishment, and religious expiation
could immediately take place. Amongst the Hebrews, a similar penalty was
exacted for murder and manslaughter. ‘Whoso sheddeth man’s blood, by man
shall his blood be shed’ is the general principle[78]; and again: ‘He
that smiteth a man so that he die[79] shall surely be put to death: if
a man slays presumptuously with guile, take him from my altar that he
may die.’[80] For accidental or justifiable slaying, however, we find
that a mode of escape from the avengers of blood was provided: ‘If God
delivers a man into his hands,[81] I will appoint thee a place whither
he shall flee[82] ... and ye shall not take compensation for him that is
fled to the City of Refuge that he should come home before the death of
the high-priest. So ye shall not pollute the land wherein ye are.’[83]
We may assume, with some degree of probability, that in this class of
homicide, some form of purgation ceremony was customary. We mention the
Hebrew custom here merely to show the general trend of Asiatic thought in
regard to homicide.

We may, therefore, regard as highly probable the view which connects the
origin of the post-Homeric Greek notion of homicide as a ‘pollution’
with the Semites and Asiatic peoples. Glotz merely states his view of
this matter without giving reasons in support of his statement.[84]
‘Alors,’ he says, ‘les Grecs prendront aux Sémites les rites dramatiques
de leurs cérémonies purificatoires.’ There were, however, some important
differences between the original Semitic doctrine and the matured Greek
adaptation of it, as will be evident from a brief explanation of the
precise nature of the Greek ‘pollution’ doctrine.


THE GREEK POLLUTION DOCTRINE

At first, we think, there came to Greece a vague rumour of the doctrine
through the medium of the Cyclic poets. Greek priesthoods in Asia had
already adopted it because of their proximity to Asiatic races who had
developed it. But originating, as it did, in the centralised theocracies
which then existed amongst these races, the doctrine could be accepted
only in a modified form by the Greek people whose predominant political
institution was the city-state.

Traces of the doctrine in its early phase, prior to its formal adoption
in Greece, appear in the story of Alcmaeon. Thucydides,[85] in his
account of the islands known as the Echinades, in western Greece, which
were gradually, owing to the silting up of the river Achelous, becoming
part of the mainland, mentions the following legend: ‘when Alcmaeon,
son of Amphiaraus, was wandering over the earth after the murder of his
mother, he was told by Apollo that here he should find a home, the oracle
intimating that he would never find deliverance from his terrors until
he discovered some country which was not yet in existence and not seen
by the Sun at the time when he slew his mother; there he might settle,
but the rest of the earth was accursed to him. He knew not what to do
till at last, as the story goes, he espied the deposit of earth made by
the Achelous, and he thought that a place sufficient to support life must
have accumulated in the long time during which he had been wandering
since his mother’s death.’ This conception of pollution is very Semitic,
and reminds us of the Biblical allusion to Cain[86] as ‘cursed from the
face of the earth,’ but it is also to a certain extent Greek, since there
was not in historical Greece any purgation for wilful matricide or, if
we may trust Plato,[87] for wilful kin-slaying. In the Apolline era
Greek kin-slaying was punished, according to Plato,[87] by death, and it
was so punished in a later Israelite penal code. In the Pelasgian era,
kin-slayers, condemned to perpetual exile, were often compelled to wander
for years and years. Their wandering must have been almost proverbial,
yet its meaning was understood. But the picture of a kin-slayer wandering
till he finds an unpolluted piece of earth can only be attributed to the
fanciful interpretation of a novel religious law which as yet was not
fully comprehended. We have already discussed[88] Miss Harrison’s views
in regard to Bellerophon and the ‘plain of wandering.’ Apollodorus tells
us[89] that Bellerophon was purified by Proetus. Miss Harrison says[90]
‘in those old days he could not be purified.’ We agree that he could not
be purged in Homeric times, because the rite was unknown: if in later
times he was said to have been purged, it became necessary to suppose
that the crime which he committed was involuntary. But Homer says nothing
of Bellerophon’s kin-slaying.[91] It was probably an invention of later
minds intended to explain the Homeric reference to the ‘Aleïan plain’
which was interpreted as ‘the plain of wandering,’ after the analogy of
the ‘wandering’ in the legend of Alcmaeon.

We hope to show presently that this religious doctrine, which declared
in effect that homicide brought down the anger of the gods upon the
community which neglected to punish it, took definite shape in historical
Greece under the aegis of Apollo and his priesthoods and Amphictyonies.
In our view, the final form of the doctrine was a fusion or compromise
between the severer Semitic conception, on the one hand, and, on the
other, the tribal traditions of Greek homicide-customs, weakened
and disorganised, as they were, in the Hesiodic age of chaos, but
unmistakably local in their outlook, and reflecting still the attitude
adopted by the relatives and attributed to the victim. The Apollo of
the Greek race could not accept in its entirety the Asiatic doctrine
of pollution but had to modify it at the bidding of customs which were
sanctified by time. As we believe that the Draconian homicide-laws were
merely an eclectic codification of the seventh-century unwritten laws of
the aristocracies of birth, it would clearly anticipate our whole account
of the Draconian legislation if we were to explain at this stage the
detailed operation of the Apolline pollution system. We shall then give
here only an outline of the Asiatic-Greek compromise which we believe to
have arisen in the eighth or seventh century B.C.

In the first place wergeld was abolished, as amongst the Hebrews, for
wilful murder. This was the greatest concession which the new doctrine
extorted from tribalism. The new provision which declared the property
of the wilful man-slayer confiscated to the State when the slayer had
gone into perpetual exile we attribute to a third factor—the evolution
of State power: wergeld in the strict sense was also abolished for
manslaughter, but the slayer was allowed and commanded, after a period
of exile, to ‘appease’ by ‘presents’ the relatives of the slain. In this
we can clearly detect a concession wrung from what we call Apollinism by
the tribes. It is usually held[92] that in the case of manslaughter, and
Glotz holds[93] that even in the case of murder, ‘private settlement’
without trial was legal in historical Athens. We hope to show[94] at a
later stage that these opinions are incorrect, except in regard to one
special and rare contingency.

Secondly, there was a religious compromise which is reflected in the
ritual of purgation. In the Semitic doctrine of pollution, murder and
manslaughter could only be ‘purged’ by the blood of the slayer, which
meant, in practice, that the slayer could never be purged at all: but
the ancient traditions of the tribes and their capacity for discerning
the varying degrees of homicide-guilt led to a peculiar compromise, by
which Apollo and other State gods consented to accept the sacrifice of
a surrogate victim, when the atonement which the law prescribed had been
paid, the actuality of the atonement being _symbolised_, as it were, by
this Chthonian sacrifice of ‘reconciliation.’

Since Greece, unlike Israel, was a conglomeration of local civic
groups, and as tribal custom had accepted exile in default of wergeld
and prescribed different periods of exile according to varying degrees
of guilt, therefore, when the issue was knit between the new Semitic
doctrine of ‘pollution’ and the ancient tribal laws, the resultant
compromise produced a new law which decreed perpetual exile for all cases
of wilful homicide, including, we believe, originally, even kin-slaying.
The law of historical times which condemned the kin-slayer inevitably to
death was not, we have reason to believe, a product of the Asiatic-Greek
compromise. Like the law which decreed the confiscation of a murderer’s
property, it is, we think, to be attributed to the evolution of
centralised State government. In regard to manslaughter different periods
of exile were, no doubt, decreed according to the different degrees of
guilt: the despotic doctrine of theocratic Asia had, in this, to respect
the long traditions of tribal Greece: accidental and justifiable slaying
probably required no civic atonement. Apollo was compelled to admit
such slayers to immediate ‘purgation.’ In other cases, ‘purgation’ was
accepted when the prescribed atonement had been made.

Our account of this compromise in the Greek doctrine of pollution is
complicated by the presence of a third factor which had become more
and more important as Greek States increased in size and power, and
which must be indirectly attributed to the doctrine of ‘pollution,’
namely, the conception of homicide as an insult to the State gods and
to the State, not merely to the Sun, or to the Delphian Apollo, or to
some still more distant Orphic deity in the underworld. This conception
of homicide raises it at once from the position which it held in the
system of ‘private vengeance’: the murderer, like the traitor and the
man stained with sacrilege, now stands forth, if not as a criminal in
the modern sense, at least as a quasi-criminal, a vile being who has
jeopardised by his act the prosperity and the destiny of the State. He
is henceforth liable to ἄτιμία,—he must be degraded from citizenship: if
he waits for the verdict which declares him a State criminal, he must
die. If he flees, his property must be confiscated to the State, as was
the property of all ‘degraded’ exiles. Retribution to the relatives,
which is the basis of tribal wergeld, has vanished into the air, but the
murderer cannot now be buried in the tomb of his fathers: he can never
frequent the temples of his gods: he cannot even attend the public games
of all the Greeks lest the contact of his presence should pollute his
fellow citizens or the gods who no longer can tolerate his presence.
But, provided he avoids certain areas and festivals, he may live without
fear. A law of Dracon[95] declares that to slay such an exile was murder.
Thus we see how the old tribal custom which accepted exile as a complete
atonement, (not, as it was amongst Achaean militarists, a mere flight
from death,) was respected despite doctrinal innovations, because it had
been sanctified by time.

Glotz holds[96] that this immunity in foreign states of exiles who were
guilty of wilful murder in their home-land was due to occasional treaties
of ἀσυλία between Greek States. We shall see that such immunity was
more probably derived from Greek extradition law, and such law implies
international authorisation. It was precisely because such laws could be
made and enforced that Greek homicides required no ‘cities of Refuge.’
Thus, the Greek pollution-doctrine bears on the face of it the stamp of a
compromise between tribe and State, between local gods and international
religion.

But there was a further compromise, which we must also indicate, namely,
that which inevitably took place between the ghosts of the slain and
the purifying gods, the καθάρσιοι θεοί. We have argued[97] that the
chaotic centuries which followed the Achaean domination produced a much
more monstrous and bloodthirsty conception of the Erinnyes than that
which existed in the Homeric age. We have suggested that the revolt
of the clansmen against Apolline innovations which abolished material
retribution for homicide may have rendered still more ferocious and
implacable the Erinnyes of the slain. Yet when the Greek Apolline
doctrine of pollution was finally accepted by Hellenic tribes and States,
the Erinnyes, like the Titans, were subdued, and became so mild that they
could be identified with the Semnai Theai and called Eumenides! They
could live in peace again, as in Homer, with the Olympian gods whom they
had learned to loathe.

They had succeeded at least in imposing many old Pelasgian traditions
upon the autocrat of Delphi. In historical Greece, at least before the
third century B.C.,[98] the State could never take the initiative in
a direct prosecution for homicide, as modern States do. It could, of
course, bring a charge of Impiety against delinquent relatives of the
slain[99]: but the initiative rested in theory with those relatives.
The wish of a dying man who had been fatally wounded was expressed in
a formal ‘charge’ which he gave to his relatives, and this very often
determined the course of subsequent proceedings. ‘Forgiveness’ by the
dying man precluded a charge of murder. If a Greek of the historical
era, who had been fatally wounded, thus ‘released’ his slayer before
he died, the relatives were not bound to prosecute[100]: they could be
persuaded to refrain from prosecution by what is known as a ‘private
settlement’ with the slayer and his relatives. This, of course, was not
a genuine wergeld; and even if it was, we could not infer that pollution
could coexist with wergeld, for ‘pollution’ did not arise, in any real
sense of the word, as the Greeks interpreted it, when the dying man
forgave. Now we cannot conceive such considerations as these affecting
the theocratic ‘pollution’ doctrine of the Hebrews. The law which decreed
by divine command that: ‘Ye shall not pollute my land wherein ye are:
for blood defileth the land,’ takes little account of the wishes of the
dying or of the relatives of the slain. We must, of course, distinguish
‘release’ from ‘forgiveness’ in Greek law. ‘Release’ implies the absence
of any ‘charge’ by the dying man. In cases of involuntary homicide,
unless the dying man commanded his relatives to prosecute, no trial
or formal proceedings were necessary[101]: ‘private settlement’ was
permitted. Whenever therefore a trial for involuntary homicide took place
in historical Greece, we must assume either that the accused denied
the guilt and refused ‘private’ compensation or that the dying man
charged his relatives to prosecute. In this latter case the slayer was
polluted and had to undergo purgation when the civic atonement had been
made. Hence we may truly say that, within certain limitations, Greek
‘pollution’ depended on the will of the victim and of his relatives.

In the light of these details we can more easily explain the peculiar
fact that a man who had no relatives—and it was sometimes possible that a
metic, or a stranger, or a casual vagrant should have no relatives—could
not be avenged if he were slain. In the _Euthyphro_ of Plato[102] we
are told how a poor freeman who had killed a slave was put in chains by
his employer—it was a kind of informal arrest—till the verdict of the
Exegetae should be heard. The freeman died. It was not wilful murder, but
there was a certain degree of guilt, a certain amount of neglect on the
part of his captor, a certain ἀφυλαξία which laid the employer open to a
charge of manslaughter. Euthyphro, a son of the employer, feeling that he
was ‘polluted’ by the fact of living with his father, proposed to charge
him before the Archon Basileus at Athens; Socrates asks Euthyphro in the
dialogue if he was a relative of the slain. Euthyphro replies that he
does not see what difference it makes whether one is a relative of the
deceased or not; the important thing is that he is polluted unless he
accuses his father. Socrates implies that such an accusation is impious.
We can only regret that Plato does not tell us the sequel of this
fanciful drama. We think that Plato is sophistically exposing, if not
covertly sneering at, the inconsistency[103] of the pollution doctrine.
He objects, apparently, to the law which made prosecution the prerogative
of the relatives of the deceased, a law which was derived, we think, from
tribal traditions of ‘private vengeance,’ just as in other passages he
objects to the legends of the gods which more primitive generations had
created.[104]

We have said that ‘pollution’ was not confined to the murderer, but
extended, as if by contagion, to all persons who harboured or protected
him or neglected to punish him. Thus Plato says,[105] in regard to
kin-slaying: ‘The relative of deceased as far as cousins, male and
female, who does not prosecute ... shall take upon himself the pollution
and the anger of the gods.’ In this we see an aspect of the Greek
‘pollution’ doctrine which expressed the autocratic will of Delphi and of
State-gods in alliance with Delphi. But if the dying man ‘forgave’ or, in
certain cases, did not solemnly ‘charge’ his relatives to prosecute, this
autocratic will could be ignored. Thus, the Erinnys of a slain man had
a determining effect on the obligation of prosecution and on the nature
of the penalty. In the Oresteian legends as they were staged by Attic
dramatists, this twofold aspect of ‘pollution’ is never quite forgotten;
but there are complications in these legends which prevent us from
dwelling at any length upon them here.

In the case of kin-slaying in a ‘passion,’ the influence of the ghosts’
will was especially vigorous. Plato says[106] that even when the
‘involuntary’ slayer had served a term of three years’ exile, and had
returned to his native land, he could never return to his family and his
home, or share with his kindred in domestic rites. Thus the Erinnys of
the slain kinsman refused to be controlled by a centralised autocracy
at Delphi, or even by the will of native State-gods. Hence, perhaps,
it is that in the dramatised versions of the Oresteia, Athene has to
use ‘Persuasion’[107] to induce the Furies of Clytaemnestra to become
Eumenides. Hence the Furies say of Orestes[108]:

    ‘His mother’s blood upon the Earth he spilled.
    Shall he in Argos dwell—his father’s home?
    What phratry-altar can him e’er receive?
    What common lustral water can he share?’

Hence, also, as Glotz points out,[109] the preliminary plea on oath of
the accuser and the accused, in homicide cases, was taken before the
altar of the Erinnyes or the Semnai Theai; and the defendant who was
acquitted of murder by the Areopagus, as well as the returned exile who
had paid the penalty of involuntary homicide, offered sacrifice there.


THE RITUAL OF HOMICIDE-PURGATION

In regard to the ceremonial of purgation by which the slayer, in certain
circumstances, was ‘cleansed’ or purified, we have already[110] pointed
out what we consider to have been the origin of the rite; and we have
shown how the analogies which existed between such a ceremonial and the
general Chthonian sacrifices of ‘expiation,’ ‘placation,’ and ‘aversion’
caused these rites to be confused with one another in the minds of
ancient and of modern writers. The ceremonial of homicide-purgation
appears at first sight so simple and elementary in character that we
would be inclined to assume _a priori_ that it could have been duly
performed by any ordinary person. But, in fact, we shall see, the
performance became the privilege of priests or theocratic nobles. An
animal, generally a pig,[111] but sometimes a calf or a lamb,[112] was
bled to death and the warm flowing blood was poured over the hands of
the slayer, passing away into the sea or into a running stream. The dead
animal was then thrown into the water, or was buried, but it could not be
eaten.

We may compare the Chthonian ceremony of swearing, in which the slain
animal was conceived as at once symbolising and magically inducing a
similar fate in case of perjury. The Roman formula is well known. Livy
tells[113] how a certain M. Valerius, one of the Fetiales, or Roman
priests, swore on behalf of the Roman State, to the Almighty Juppiter,
in a treaty with ancient Alba. ‘Audi, Iuppiter: audi, pater patrate
populi Albani: audi tu, populus Albanus ... si prior defexit publico
consilio, dolo malo, tu illo die, Iuppiter, populum Romanum sic ferito
ut ego hunc porcum hic hodie feriam: tantoque magis ferito quanto magis
potes pollesque.’ Now, all such ceremonies, simple as they may appear,
were hedged round with the most minute regulations as to formulae
and procedure, and were thus removed from the competence of ordinary
individuals.

Moreover, each locality developed differences of usage which, however
slight, could never be ignored. Herodotus,[114] speaking of homicide
purgation, implies that all Greeks used the same rites. But that there
were minor local variations may be inferred, perhaps, from a peculiar
ceremony in the _Oedipus Coloneus_ of Sophocles. Oedipus, having gone
as an exile from Thebes to Attica because he had slain his father, is
told[115] that he cannot hold converse with the Athenians while he is
still uncleansed. The ban is removed when he is admitted to ‘purgation,’
but for the due performance of the rite he is entirely dependent on local
direction. We shall give the relevant dialogue between Oedipus and the
Chorus[116]:

    _Oed._                                           Kind sir,
          Be my good guide. I will do all thou biddest.

    _Ch._ Propitiate these holy powers, whose grove
          Received thee when first treading this their ground.

    _Oed._ What are the appointed forms? Advise me, sirs.

    _Ch._ First see to it that from some perennial fount
          Clean hands provide a pure drink-offering.

    _Oed._ And when I have gotten this unpolluted draught?

    _Ch._ You will find bowls, formed by a skilful hand,
          Whose brims and handles you must duly wreathe.

    _Oed._ With leaves or flocks of wool, or in what way?

    _Ch._ With tender wool ta’en from a young ewe-lamb.

    _Oed._ Well, and what follows to complete the rite?

    _Ch._ Next, make libation toward the earliest dawn....

    _Oed._                                  With what contents
          Must this[117] be filled? Instruct me.

    _Ch._                                        Not with wine,
          But water and the treasure of the bee.

    _Oed._ And when leaf-shadowed Earth has drunk of this,
          What follows?

    _Ch._               Thou shalt lay upon her then
          From both thy hands a row of olive twigs
          Counting thrice nine in all—and add this prayer—

    _Oed._ That is the chief thing—that I long to hear.

It may be said that we have not here a genuine instance of
homicide-purgation. There is no animal sacrifice, no ‘cleansing’ by a
bath of blood. Water and honey were regular offerings to the dead, and
the express prohibition of wine-libations reminds us very forcibly of the
sacrifice to the Erinnyes made by Clytaemnestra in the _Eumenides_ of
Aeschylus.[118] Has Sophocles in mind, then, a local rite of placation to
the Erinnys of Oedipus at Colonus, which he interprets as a commemoration
of purgation rites? We have seen how easily such rites may be confused.
Or are we to assume that the purgation rite for involuntary or extenuated
homicide was different from the rites by which a wilful murderer could be
purged ‘abroad’ or from those by which a justifiable slayer was purged
at home? Was the sacrifice which was offered to the Erinnyes or the
Semnai Theai[119] by involuntary slayers after their return from exile,
and by accused persons who were acquitted by the Areopagus, a regular
purgation rite? These questions we find it difficult to answer either in
the affirmative or in the negative. Plato’s references[120] to greater
and lesser ‘cleansings’ according to different degrees of guilt imply
that the average Greek did not understand the exact nature or purpose
of ‘purgation’ and that the secrets of this magic art of reconciliation
were the exclusive privilege of theocratic nobles whose interest it was
to obscure rather than to clarify the details of the system. The passage
we have quoted from the _Oedipus Coloneus_ possibly points to variations
in the ‘purgation’ ritual according to degrees of guilt—variations
which suggest moreover the ambition and the power of local deities and
priesthoods to retain their distinctive peculiarities in the execution of
a central Apolline doctrine.[121]

In the _Iphigenia Taurica_ of Euripides[122] we find a mock purgation
ceremony arranged by Iphigeneia to save the lives of Orestes and of
Pylades. The image of Artemis is said (it was a fiction invented by a
loving sister) to have turned in its seat and to have closed its eyes
when the blood-stained Argive cousins entered the temple! Iphigeneia
proposes to ‘cleanse’ the pollution by the blood of young lambs shed
in solitude by the sea and such other things as she has ordered as
purifications. King Thoas, not being himself appealed to, leaves the
whole question of purgation entirely in the hands of the priestess of
Artemis.

From the legend that Bellerophon was cleansed by his host Proetus,[123]
the king of Tiryns, we might be inclined to argue that the purgation
rites for certain forms of kin-slaying were performed by private
non-sacerdotal individuals. But every king was a High Priest in primitive
religion; and, further, we have already seen that Proetus could not have
performed the post-Homeric ceremony which is attributed to him. It is
however possible that Croesus personally ‘purged’ the Phrygian homicide
mentioned by Herodotus.[124]

It is probable that in Greece the ‘cleansers’ of homicide-guilt were
always ‘priests’ of some kind. Epimenides of Crete purged the city
of Athens on a famous occasion, yet not from murder but rather from
sacrilege[125]; moreover, Müller points out[126] that he was a native of
Phaestus in Crete where there was a very ancient cult of Apollo; hence
Epimenides was more than probably a member of an Apolline sacerdotal
guild. Müller is, however, we think mistaken in regarding purgation for
homicide as the exclusive privilege of Apolline priests. The Euripidean
reference to purgation by a priestess of Artemis which we have just
cited,[127] Athene’s interpretation[128] of the supplication of Orestes
as a supplication for purgation, in the _Eumenides_ of Aeschylus, and
many passages in the _Laws_ of Plato,[129] reveal the error of this
opinion.

The purgation of Orestes by Apollo is described by Aeschylus in the
_Eumenides_. It is no priest or priestess of Olympian or Chthonian gods,
but Apollo himself,[130] the chief of the καθάρσιοι θεοί, who performs
the rite. We cannot interpret the ceremony as the purgation of a wilful
matricide ‘abroad,’ as we think that such purgation was impossible, at
least in historical times.[131] It is the ‘purging’ rather of a deed
which is either justified or extenuated by Apollo’s express command, a
‘purging’ which would normally take place in the slayer’s home-land but
which is here attributed to a divine Delphian purifier either because
Apollo was the patron of the Greek ‘purgation’ system or because the
deed was such that no one could have cleansed it save the god who had
commanded it, or because a Phocian legend made Phocis, not Athens, the
place to which Orestes fled after the slaying of his mother. Orestes
tells[132] Athene that he is not a suppliant for purgation at Athens,
because he has been already ‘purged.’ We may infer from this that a
homicide-exile had not to be ‘purged’ more than once in his changes of
residence abroad, but we think it probable that such ‘extern’ purgation
did not dispense with the need for ‘domestic’ purgation if the exile was
ever permitted to return to his home.[133] Orestes says[134]: ‘There is
a law that the shedder of blood is debarred from human intercourse until
at the hands of a man who purifies from bloodshed the blood of a young
animal has been poured upon him. Long ago have I been thus made clean by
others who live elsewhere, by animal victims beside running water.’

From this passage, and from the reference which we have cited
from Euripides’ _Iphigenia Taurica_, as well as from more general
considerations we conclude that homicide-purgation normally included
the shedding of animal blood when some element of guilt was admitted.
It is possible, therefore, that the rite described by Sophocles, in the
_Oedipus Coloneus_,[135] was not conceived as a genuine purgation-rite
but rather as an exceptional local procedure which was intended to
supplement a presumed anterior purgation.[136] That Attica was noteworthy
for its scruples regarding ‘pollution’ may be inferred from the remarks
of the Corinthian Chorus in the _Medea_ of Euripides.[137]

We are entirely on the side of Müller[138] and Philippi[139] in the view
that purgation, in historical Greece, was applied to the authors of
justifiable bloodshed.[140] This we may regard as a further confirmation
of our opinion that homicide-purgation was not a placation of ghosts
or an expiation offered to gods, but a solemn and sacred symbol of
reconciliation between the slayer and his native gods.[141]

Our hypothesis of the origin of the Greek doctrine of homicide as a
pollution will receive still further confirmation when we describe in
more detail the historical Greek system of penalties for bloodshed and
the conceptions of those penalties which are found in Attic tragedy.
We will now give the reasons which have led us to associate the Greek
‘pollution’ doctrine with the Delphian Apollo and his Amphictyonic
League, after which we shall be in a position to discuss[142] the
influence of the ‘pollution’ doctrine on ‘wergeld’ and the legality of
‘private settlement.’ The following account is intended as a supplement
to Müller’s analysis, which errs only in attributing purgation-rites
exclusively to Apollo and his priests.


APOLLO AND POLLUTION

In Homer, Apollo has already established at Pytho a temple of many
treasures.[143] The reference to ‘sacred Crisa’ side by side with ‘rocky
Pytho’[144] suggests, if the Greeks were right in their interpretation
of ‘Crisa’ as ‘the Cretan land,’ that the region was already revered in
the days of the Minoan thalassocracy. Aeschylus in the _Eumenides_[145]
reproduces the Greek tradition regarding oracle-deities at Delphi,
before the advent of Apollo. The Delphian priestess accords priority to
Ge, the Earth-goddess, ‘the first of prophets,’ and then she prays to
Themis, as the second deity who gave oracles there. This legend probably
originated in a joint worship of Ge and of Themis under the forms of
the Mother and the Maid; for, just as the cult of Demeter and Kore
represented the joint worship of the Earth and its produce, so the cult
of Ge and Themis represented the worship of the Earth and of the deified
uniformity of the Earth’s fertility. Next the priestess prays to Phoebe,
another daughter of Earth, who in turn transmitted the oracle to her son,
Phoebus Apollo. It was supposed that the temple which is mentioned by
Homer was the fourth[146] temple which had been built on that site. This
temple was destroyed in 548 B.C., according to Pausanias.[147] Hence it
is much less probable that the oracular shrine had been handed down by
continuous succession as an inheritance within a ‘divine family’ than
that it was repeatedly destroyed and desecrated by successive invaders.
The destruction of Crisa in 585 B.C. by the Amphictyonic League furnishes
an historical illustration of its chequered career in prehistoric ages.
The octennial festival known as the Stepteria,[148] which commemorated
the conquest of the Python by Apollo, had probably an historical
foundation. For the Python, a large snake, was worshipped as a symbol of
the Earth’s fertility: it was therefore associated with Ge and Themis,
who ‘handed down’ the oracle according to legend. The famous Omphalos
at Delphi, of which the origin and significance were so mysterious to
the Greeks, was really the tombstone of the Python. But Earth, though
buried, still lived in the tomb! It was from a cavern of Earth that the
Pythian priestess received the vapours which produced her ‘anaesthetic
revelation.’[149] In the Apolline shrine was the Hestia, or sacred
Hearth, derived from pre-Olympian ancestor worship and necromantic art.
Before the pilgrim entered the shrine of the Olympian oracle, he had to
perform a Chthonian sacrifice, and offer a πέλανος, a mixture of milk,
wine and honey, which was a characteristic offering at the tombs of the
dead.[150] Around the tomb of the Python stood Gorgon-images,[151] which
were probably suggested by ‘image-magic’ as a placation of the wrath of
the Erinnyes, who sought the life of the slayer of the Python. It was
from these images, we think, that Aeschylus derived his conception of
the Erinnyes, and the famous scene[152] which depicts them as sleeping a
loathsome sleep in the temple of Apollo, whom they hate but also fear.
We find in Aelian and Plutarch the legend[153] that Apollo, in the days
of his conquest of Delphi, fled to Tempe, after slaying the Python, to
be purified from the pollution. The Stepteria festival was believed to
commemorate his flight! In this legend, however, as in that in which
Zeus purifies Ixion,[154] we see the effect of aetiological myth-making
and the operation of a principle of primitive religion whereby man makes
the gods in his own image and attributes to them the emotions and the
observances of his own day.

As we cannot regard Apollo, notwithstanding Müller’s[155] reasoning,
as the special product of Dorian religion, so we cannot attribute his
exaltation in post-Homeric days exclusively to the Dorian invasion.
The Achaeans worshipped Apollo as a prophet-god and as a powerful ally
in war, but their hegemony in Greece was based on military control
rather than on theocratic manipulation. The Delphians are not mentioned
in Homer. They were a Dorian dominant caste which conquered the
Phocian masters of the ‘Homeric’ temple at Pytho,[156] about 1000 B.C.
Undoubtedly they could not have retained the fruits of their conquest for
any period of time, if they had not been supported by the power of the
Dorian invaders of Southern Greece. Thus, in 448 B.C., when the Phocians
had reoccupied Delphi, it was the Dorian Spartans who sent an army to
restore it to the Delphians.[157] Yet the Athenians, who were then
supreme in Central Greece, restored it to the Phocians for a time. But,
about 585 B.C., when anti-Dorism was at its height in Greece, it was to a
northern league of Greek States, in which the Dorians were subordinate,
that Delphi looked for help against the Phocians of Crisa.[158] The fact
that Cleisthenes of Sicyon, an anti-Dorian, championed the Delphians
in this campaign, proves that their Dorian nationality was already
subordinated to the prestige which they had won as the High Priests of
Greek prophetic religion: and the loan of fifteen talents which a Spartan
king gave to the Phocian general who had once more seized Delphi in 356
B.C. shows how Dorism had lost its primal solidarity.[159]

We think, then, that the prestige of the Delphian Apollo, though
originating in the Dorian migration, was due to a combination of two
forces: (1) the widespread cult of Apollo in Greece and in Asia Minor:
and (2) the skill by which the Delphians (who controlled the oracular
decrees) impressed the Greeks and foreign peoples with the unrivalled
divinity of their local shrine in matters of prophecy and healing-magic;
and organised under their banner the local priesthoods of Greece by
annual processions and pilgrimages, by the construction of sacred roads,
and the establishment of religious Amphictyonies.[160] While other
‘sacerdotal’ nobles in Greece worshipped a number of deities, Olympian
and Chthonian, the Delphians seem to have concentrated on Apollo. They
were definitely theocratic—being a select caste of nobles, whose High
Priests were elected by lot.[161] They formed a criminal court which
exacted the death penalty for sacrilege. It follows that when homicide
became a religious offence, these judges would not only have decided
all cases within their territory,[162] distinguished between different
degrees of guilt, and pronounced upon the possibility of purgation,
but they would also have used the prestige of the oracle to make
their decisions imitated elsewhere. Thus, the Attic Eupatridae, who
worshipped Apollo Patroos, and their judges, the Ephetae, who swore by
him before their trials,[163] would naturally have adopted the decisions
of the central Apolline oracle. Moreover, the annual processions of
representatives (θεωροί) of Greek states to Delphi, the Pythian Games, a
festival in which all Greeks participated, and the formation of religious
international leagues or Amphictyonies made obedience to Apolline oracles
almost a matter of obligation.

The great Thessalian Amphictyony of Demeter at Anthela, a very ancient
association, including Thessalians, Locrians, Phocians, Boeotians,
Athenians, Dorian and minor states, came in the sixth century[164]
to meet also at Delphi, and the temple was placed under the control
of international Hieromnemones who met twice a year and promulgated
laws to be obeyed by all its members, called Amphictyonic laws. It is
significant that, in historical Athens, murder exiles were prohibited
from Amphictyonic festivals.[165] This law was clearly of Amphictyonic
origin.[166]

We have quoted Thucydides’[167] account of the command which was issued
by the oracle of Apollo to Alcmaeon, the matricide, directing him to
travel to the Echinades Islands. This legend bears, on the face of it,
an antique stamp, and the function which is here ascribed to the Delphic
oracle is a first-rate piece of evidence for the connexion of Apollo
with the historical doctrine of ‘pollution.’

We have quoted Herodotus’[168] account of the story concerning Phrixus
and Athamas, in which a Delphic oracle was said to have commanded the
Thessalians to ‘purge’ their country by slaying Athamas in sacrifice.
This legend we regard as ‘unhistorical’ and pseudo-aetiological, but the
rôle which it assigns to Delphi may be cited in support of our present
hypothesis.

In historical Attica, the rites of homicide-purgation were performed by
three persons called Exegetae or Interpreters who, Suidas[169] assures
us, were appointed or controlled by Delphi (Πυθόχρηστοι). Plato,[170]
speaking of the appointment of Sacred Interpreters, says: ‘It is right to
bring from Delphi the laws relating to all “divine matters” and to follow
these laws, having appointed interpreters for them.’ Speaking of their
appointment he says that from the names of candidates which stood first
on the list after election, nine should be sent to Delphi, and ‘the god’
was to select three of these names. The homicide laws of Dracon, as we
shall see later, were not a complete code of homicide-law. Many details
were omitted, and these details, we believe, were worked out in the
unwritten code of the Ephetae and the Exegetae. In the _Euthyphro_[171]
of Plato, a poor freeman who had killed a slave was put in chains and
cast into a trench on the wayside to await the decision of the Exegetae
concerning his guilt! The man died from hunger and neglect before the
decision arrived, and the question of avenging his death forms one of the
problems of the dialogue.

Coulanges points out[172] that the Spartans regarded, not Lycurgus, but
Apollo, as the author of their laws. These laws were Πυθόχρηστοι. If they
operated, concerning homicide, in a comparatively severe manner, this was
because the Spartan military system absorbed without much modification
the autocratic tendencies of Delphic law, but we must not attach too
much importance to a single statement of Xenophon’s which can perhaps be
otherwise explained.[173]

Solon, the Athenian legislator, abolished all the laws of Dracon except
those which related to homicide.[174] These particular laws were
themselves an anomaly in the Draconian code. Plutarch says that the laws
of Dracon were said to have been written with blood, not with ink.[175]
Death was the penalty for minor thefts, yet the wilful murderer was
accorded the option of exile, and the involuntary slayer, the further
option of ‘appeasing’ the relatives of the slain! The life of a murderer
in exile was ‘protected’ by the decree of a State whose jurisdiction
ceased at its boundaries! We believe that the Draconian homicide-laws are
an eclectic codification of existing traditions and that these traditions
were a compromise between tribal customs and the seventh-century
Apolline doctrine of ‘pollution.’ Coulanges says[176] that Solon did not
change the murder laws of Dracon, because they were ‘divine,’ and to
disobey or tamper with such laws was regarded as sacrilegious. In our
view Apollo and the Delphic oracle constituted one of the sources, and
clan-traditions another, from which sprang the laws which Dracon codified.

Plato,[177] speaking of the penalties for wilful kin-slaying, refers
to a myth or legend ‘clearly told by priests of old’ to the effect
that Justice, the avenger of kindred bloodshed, has ordained that
the perpetrator of such an act shall suffer the same doom as he has
himself inflicted.[178] We have seen[179] that in the clan-system,
kin-slaying was normally punished by perpetual exile, but not by death.
We do not agree with Caillemer[180] that the fate of such exiles was
more pitiable than that of ordinary homicide exiles, but we support
the following opinion of his in regard to the attitude of the kindred.
‘Ils hésitent,’ he says, ‘souvent à verser le sang de leur parent: ils
se bornent au bannissement du coupable.’ In Plato,[181] the penalty
for kin-slaying is inexorably death. It was, we believe, the pollution
doctrine which indirectly produced this change, through the abolition of
‘private vengeance.’[182] It could not have _directly_ produced it, as
is clear from the fact that amongst the Israelites, who still retained
the avenger of blood, Cain, the murderer of his brother, was punished
only by exile; but when, as in Greece, the pollution-doctrine caused
the State to interfere in the trial of homicide and in the execution
of its penalties, State judges came to execute a penalty which the
relatives of the slain would never have inflicted upon a kinsman in the
days of ‘private vengeance.’ We shall discuss more fully, later,[183]
the problems concerning parricide in Attic law. The fact that parricide
was not expressly mentioned in Dracon’s laws does not prove that such a
crime was not punished by State officials in historical times. Thus the
myth which is attributed by Plato to ‘priests of old’ may be regarded as
another proof of the ‘divine,’ which is to say, the Apolline inspiration
of historical Greek homicide law.

Again,[184] in regard to suicide, Plato says that it is necessary for
the relatives of the deceased to inquire of the ‘Interpreters’ as to the
proper methods of purification and of burial.

But the most decisive argument to be derived from Plato as to the
connexion of Apollo with purgation and with Greek homicide law can be
found in the scholium to a passage in the _Laws_, a scholium which
incidentally supplies a proof of the historicity of Plato’s murder laws.
The passage enunciates different cases of justifiable homicide, or rather
justifiably accidental homicide—the essence of such discrimination lies
in the fact that certain kinds of accidental slaying were foreseen and
provided for, in advance, whether by custom, or by public opinion, or
by written codes—and the cases which are here enunciated are identical
with those of the Draconian law regarding justifiable bloodshed.[185]
We cite only a section of the passage,[186] which is sufficient for our
present purpose. ‘If any person unintentionally slays a fellow-citizen
(φίλος) in a “contest” or at the public games ... or during war, or in
military exercises ... in imitation of warfare ... let him be purified
according to the law brought from Delphi about such matters and be
immune from punishment (καθαρός).’ The scholiast gives the Delphic law,
as follows.[187] ‘_The law or oracle_ brought from Delphi regarding
a man who kills his friend (_i.e._ fellow-citizen, as distinct from
public enemy) involuntarily:—“Thou hast slain thy comrade (ἑταῖρον)
while intending to defend him (ἀμύνων)—his blood doth not pollute thee:
thou art purer than thou wast before: but thou, man, who standing near
a comrade being killed hast not defended him—thou hast gone not pure
away.”’ That such important cases of justifiably accidental homicide
should be provided for by Delphic legislation is a most noteworthy fact.
Such cases are mentioned in Dracon’s laws, and we presume that they found
a place in other Greek written codes. The reference to ‘public games’
suggests unmistakably an international code of laws. Here, then, we find
Plato, a member of that Attic State which prided itself on the early
foundation[188] of the Delphinium court, for the trial of justifiable
homicide, in the time of its first Ionian Kings, advising a conformity
to Delphic legislation in homicides of this kind! This scholium, if
properly weighed and considered, would in itself be almost sufficient
to demonstrate our theory of the Delphic origin of historical Greek
homicide-laws, and of the universal similarity of these laws. We cite it
here, however, as a mere link in a chain of evidence which is still very
far from completion.

We have already referred[189] to the exclusion of homicide-exiles from
Amphictyonic festivals in Greece, and we have maintained that such a law
probably originated in some Amphictyonic league such as that of Apollo at
Delphi. The same reasoning applies to the law quoted by Demosthenes[190]
as a law of Dracon, which protected the lives of homicide exiles abroad.
The law reads: ‘If anyone shall slay a murderer or cause his death
while he abstains from market-places on the State boundaries and from
(public) games and Amphictyonic festivals, such a person shall be liable
to the same penalties as if he had killed an Athenian citizen.’ We have
already[191] suggested the origin of such a law. It was, we think, due
to the influence of tribal custom in conflict with the new doctrine of
‘pollution,’ in the seventh century B.C. Demosthenes does not understand
correctly the origin of the law, though he is reasonably successful in
explaining the law.[192] ‘What,’ he says, ‘was the legislator’s object?
(He thought) that if we slay people who have fled to other countries,
others will slay those who have fled to us: if this happens, the only
refuge left for the unfortunate wretches will be abolished ... also
he strove to prevent an indefinite series in the avenging of (such)
crimes.... He considered that if a man who is tried for murder, and
condemned, once escapes securely, though he ought (also) to be expelled
from the native State of the victim, it is not righteous to kill him in
every place.’ Demosthenes forgets that it was quite possible for ancient
Greek States to make an international compact such as appears to operate
between States of the modern world, whereby all murderers who fled abroad
would be _extradited_—not slain where they had taken refuge, but handed
over to the State of the ‘victim.’ We shall see presently[193] how the
Greeks did evolve a system of extradition of a special kind. All the
objects which Demosthenes attributes to the legislator are the creations
of his own rhetorical mind. Why should he expect pity for ‘unfortunate
wretches’ in a legislator who decreed that, if these wretches remained
at home until the verdict of the court was given, they would inexorably
be put to death? Why should a murderer expect pity from the relatives of
the slain who were polluted by his presence? No, such a law must have
originated in a central international Amphictyony or oracular authority
which, in its legislation, had to respect the traditions of tribal
village communities and of tribal aristocratic States, traditions which
had come down from distant ages, and could not be suppressed without a
struggle. Tradition held that ‘exile’ saved the murderer’s life, and
it was not felt that such a penalty was not a sufficient deterrent.
New social conditions, new religious doctrines may have changed men’s
conceptions of the deterrent power of exile, but they had, nevertheless,
to respect the old tradition. The homicide laws of historical Greece are,
we believe,[194] a compromise between central autocratic deterrence and
tribal ‘private vengeance.’

In the last clause of the Demosthenic passage which we have cited there
is a reference to the righteousness of slaying a murderer if he did not
abstain from the ‘land’ of the victim where that ‘land’ or State was
different from his own. We fail to understand how such a law could have
existed, or could have effectively operated, without an international
compact expressly made or tacitly adopted through the mouthpiece of
an Amphictyonic oracle. We cannot accept Glotz’s theory[195] that the
immunity of homicide exiles abroad originated in separate treaties of
Refuge or ἀσυλία. The law is much too wide and universal to permit of
such an explanation. Thus, for instance, if an Athenian slew a Theban
at Athens or at Thebes, the murderer was bound, after conviction, to
abstain from Athens and Thebes for the rest of his life. No single Greek
state could have produced such a law. Such eventualities would inevitably
require an international compact or an Amphictyonic sanction.

Plato confirms the existence of these laws. Speaking of involuntary
homicide, he says[196]: ‘It is necessary that the slayer should withdraw
from the (country of the) slain and evacuate his own native land for a
year: if the deceased is a stranger, let the homicide be debarred from
the stranger’s “land” for the same period.’ Speaking of wilful murderers,
he says[197]: ‘If he goes abroad without challenging a verdict (μὴ
θέλησας κρίσιν ὑποσχεῖν), let him suffer perpetual exile: but if any such
person sets foot upon the “land” of the slain, let whoever first meets
him, whether relative (of slain) or citizen, slay him with impunity, or
... hand him to the magistrates ... to put him to death.’

So far we have assumed that only two States were involved in the
homicide. But let us suppose that an Athenian slew a Theban at Argos. It
would seem that the Athenian slayer, if he elected to become an exile
rather than to die, was debarred from three places or rather three
States, namely, Athens, Thebes and Argos. Plato, speaking of involuntary
homicide between strangers, metics, and citizens, says[198]: ‘If a
stranger involuntarily kills a stranger in the city, let anyone who
wishes prosecute him in accordance with the same laws: if the slayer is a
metic, let him go into exile for a year: if he is a complete foreigner,
let him, if he shall have killed a stranger or a metic or a citizen, be
banished for his whole life from the country which has power over these
laws,[199] and if he returns contrary to the law let the guardians of
the laws punish him with death.’ The city which has ‘authority or power
in regard to these laws’ must be, in this case, the city in which the
deed took place. Thus, a person guilty of involuntary homicide could in
certain circumstances be debarred for ever from the place in which the
deed occurred, and for at least a year from the land of the victim and
also from his native land. Who could have enacted such laws except an
international authority?

The operation of such an authority is also revealed in the laws regarding
ἀνδροληψία, or the seizure of hostages, when a murderer was not tried or
punished by a ‘foreign’ State. A law which is attributed to Dracon, but
which clearly must have had its origin in some national or central Greek
authority of pre-Draconian days, reads as follows[200]: ‘If anyone dies
a violent death, his relations shall be entitled to take hostages on his
behalf, until (the people concerned) either challenge a verdict of murder
at a trial (δίκας τοῦ φόνου ὑπόσχωσιν) or extradite the slayers: and
the taking of hostages shall extend to three persons but not more.’ The
meaning of the law may be thus illustrated: if an Athenian slew a Theban
at Argos, and if the Argives ignored the deed, and no one prosecuted the
slayer, the relatives of the Theban could come to Argos and seize the
first three men whom they met, and hold them as hostages till the Argives
either tried the slayer or handed him up to the Thebans. We have taken an
extreme case, but it is such a case which Demosthenes has in mind when he
comments[201] on the law. In historical Greece, the duty of prosecution
was normally limited to the relatives of the slain. The slaying of
strangers was therefore likely to pass without prosecution. But this
right of ἀνδροληψία was an important corrective of the laxity of this
system. Relatives, living at a distance, ignorant of the actual slayer,
might be regarded as impotent since they knew not whom to accuse. But the
seizure of hostages would speed up the revelation of the criminal!

We may distinguish three different cases of ἀνδροληψία. (_a_) If an
Athenian slew a Theban at Thebes, that is, if a stranger slew a citizen,
then the relatives of the slain who were on the spot could ascertain
easily enough the identity of the slayer and could put him on trial. If
after conviction he fled to his native State, that State was bound to
put him to death. If he remained after trial in the State of the slain,
which, in this case, was also the State in which the deed took place,
he was also put to death. But if he fled before trial to his own State,
and if his fellow-citizens did not try him and punish him, or arrest
and surrender him, the relatives of the slain could legally seize as
hostages three of his fellow-citizens. (_b_) If an Athenian slew a Theban
at Athens, that is, if a citizen slew a stranger, then the relatives of
the slain, being aliens, had the right to prosecute through a προστάτης;
but if the slayer was not tried or surrendered, seizure of hostages
followed, for such seizure was the only means by which this result could
be secured, and ultimately the slayer was debarred both from Athens
and from Thebes. (_c_) If an Athenian slew a Theban at Argos, and if
the slayer remained at Argos, unpunished, or if he fled to Athens and
enjoyed immunity there, the relatives of the slain Theban were entitled
to seize three Argives or three Athenians, as the case might be, in order
to compel his surrender. The city which harboured him had either to put
him on trial or to give him up to the relatives of the slain. We may
infer from Plato that, if he were convicted of manslaughter at Argos,
his punishment would have been more severe than if he were convicted at
Athens of slaying an Athenian in Athens! But we presume that he could
have elected to stand his trial at Athens, if the Theban relatives agreed
to accept the verdict of an Athenian court.

The wording of the Draconian extradition law is vague and incomplete. The
emergencies which it does not expressly indicate were no doubt provided
for by an Apolline Amphictyonic code, which was either unwritten or, if
committed to writing, was kept secret, or if promulgated, has left no
trace of itself in inscriptions or in literature. But we fail to see
how even the Draconian law could have ever originated in any one State,
or in the mind of a single legislator. We believe that it was, on the
contrary, of international or Amphictyonic origin. We have suggested,
moreover,[202] that the homicide penalties of historical Greece were the
result of a compromise between the religion of Apollo and the traditions
of local State-gods and of the Erinnyes who represented the wrath of
the slain and the desire of the relatives for retribution. Does not this
theory help to explain and does it not therefore derive support from the
fact that the punishment of homicide was most severe and the duty of
prosecution most widely diffused in the case of homicide committed in a
State in which both slayer and slain were legally ‘strangers’?

Glotz,[203] who sees in the protection of a murderer’s life ‘abroad’
(which means, as we now see, anywhere outside the one, two, or three
States which might be involved in the case) the operation of treaties
of ἀσυλία or Refuge between individual States, explains the extradition
law regarding the seizure of hostages as an ancient tradition of the
clans. Indicating the contrast which exists between ancient and modern
extradition, he observes[204]: ‘En Grèce, l’extradition a de bonne heure
figuré dans le droit des gens. Mais elle n’était pas du tout à l’origine
ce qu’elle est devenue. Les peuples civilisés des temps modernes ont pour
principe de livrer des étrangers présumés coupables de crimes commis en
pays étranger, mais non pas leurs nationaux, même pour crimes commis
sur terre étrangère. Les anciens se faisaient un point d’honneur de ne
pas abandonner le malheureux qui s’était enfui sur leur sol et confié
en leur protection. L’hôte est toujours sacré: le foyer d’une cité est
un asile inviolable ... c’est l’extradition telle qu’ont pratiquée
longtemps les Aryens, _ut populus religione solvatur_.’ It was, according
to this view, only a sense of honour, a fear of violating the sacred
rights of hospitality, which gave to Greek extradition law its peculiar
characteristics. But criminals cannot claim any right of hospitality, in
the ordinary sense. Moreover, Glotz forgets that a Greek State had to
expel or deliver up a stranger if the deed of blood was committed in its
territory. It also had to give up its ‘nationals’ if these ‘nationals’
had slain foreigners at home or abroad. Glotz draws too fine, too neat a
contrast between ancient and modern extradition. He does not explain the
origin of the ancient system. To say that it existed in early clan-law
but that it developed later into something quite different is not an
explanation of it. Clan-extradition arose, we believe, as a solvent of
war between the clans concerned. The tribal court or the city court may
possibly have acted in Pelasgian times as a medium for the operation of
this solvent. But the historical system of extradition, with all its
minute differentiations and variations, bears, we think, the stamp of
Amphictyonic legislation in the age of aristocratic rule in Greece, or in
what we may call the Apolline era. It was only when homicide became an
offence against an international god at Delphi, that is, in the seventh
century B.C., that such legislation came to be applied to this kind of
‘crime.’ This is our explanation of the origin of the law. It was an
international compact issued in the form of an oracle.

As an illustration of the interference of oracles in international
disputes we will cite one or two passages from Herodotus. At the battle
of Thermopylae in 480 B.C. Leonidas, the famous king and commander of
the Spartan band, was slain, and Xerxes, the Persian king, mutilated
the corpse by decapitation and crucifixion.[205] This act is regarded
by Herodotus as a barbarous violation of the customs of war, and is
attributed by him to the rage and anger of Xerxes at the time. The
Spartans seem to have been able to present the act afterwards as a case
for damages, and they secured the support of the Delphic oracle. When
the Persians had failed in their expedition against Greece, and Xerxes
was returning to the Hellespont, ‘an oracle came from Delphi to the
Lacedaemonians bidding them ask satisfaction from Xerxes for the death
of Leonidas and accept that which should be given by him.’[206] Xerxes
ridiculed the suggestion at first, but later he referred the herald to
Mardonius, who would, he said, pay satisfaction. At the battle of Plataea
Mardonius was slain, and then, says Herodotus,[207] ‘the satisfaction
for the death of Leonidas was paid by Mardonius according to the oracle
given to the Spartans.’ Again, we are told[208] that after the Persian
conquest of Lydia, Cyrus charged Mazares to bring to him alive a certain
Pactyas, a leading anti-Persian rebel. Pactyas fled to Kyme, and when
messengers came from Cyrus demanding his ‘extradition,’ ‘the Kymeans
resolved to consult the deity at Branchidai as to the course which they
should follow.... For there was there an oracle established of olden
time, which all the Ionians and Aeolians used to consult’: and ‘when they
thus inquired, the answer was given them that they should deliver up
Pactyas to the Persians.’ Herodotus says that the Kymeans did not give up
Pactyas, as they suspected the oracle of political designs. Later, the
oracular shrine informed them that they were bidden to deliver up Pactyas
only in order that they should be punished by the gods for contemplating
the violation of a suppliant’s rights! This does not imply, as Glotz[209]
supposes, that such rights belonged to murderers, for Pactyas was not a
murderer. We cite the passage here merely to illustrate the custom of
consulting oracles in ‘extradition’ disputes.

The theory which connects Apollo with the doctrine of homicide as a
‘pollution’ finds further confirmation in many Greek legends. The
story of the purgation of Ixion by Zeus, which is first referred to
by Pindar[210] and by Aeschylus,[211] is, we think, an instance of
‘reconstruction,’ or ‘retrojection,’ on the part of legend-makers who
were less concerned with the matter of consistency in the character
of Zeus than with the maintenance of his exalted rôle in the Olympian
religion of post-Homeric days, which tended to extol Apollo the Son over
Zeus the Father. Sidgwick’s view[212] that this legend originated in
an attempt to derive the name _Ixion_ from the root ἴκ as found in the
words ἱκέτης and ἱκετεύειν (which refer to suppliant-rights) seems to us
very probable. Pindar has perhaps been misinterpreted by Verrall[213] in
the translation of ἐμφύλιον αἷμα as kindred-murder. We have seen[214]
that the word ἔμφυλος sometimes carries this meaning in Homer. But in
the Pindaric narrative it was his father-in-law whom Ixion slew, and
fathers-in-law are not, as a rule, akin in blood to their sons-in-law,
though they may belong to the same tribe (φυλή). Pindar asserts that the
act of Ixion was malicious: but we have said[215] that for malicious
kin-slaying purgation was not possible: ‘Of a kindred blood defiled,’
says Plato,[216] ‘there is no other cleansing ... before the life that
has sinned shall pay kin blood for kin blood.’ Hence, it is necessary
to suppose that Ixion was not akin to his victim. The legend of the
purgation of Ixion is open to suspicion on the further ground that Ixion
is said[217] to have been the first who ‘supplicated’ for purgation,
and is said to have been purged _by Zeus_. Now Apollo, not Zeus, was
the pioneer amongst the Purifying gods (καθάρσιοι θεοί). It was Apollo
who purified Orestes, in the legend which Aeschylus follows in the
_Eumenides_.[218] ‘Mine was the house,’ says Apollo, ‘and mine the hearth
which received this suppliant, and I am the purger of his blood-guilt.’

We shall see, later,[219] what a difficult problem the Homeric saga of
Orestes presented to the legend-makers of the ‘Apolline’ era (750 B.C.
onwards). There was only one means by which the Homeric story could be
retained without assuming an atrocious indifference to kin-slaying on the
part of the Homeric Greeks: namely, by representing the act of Orestes
as in some way justified. But the Apolline code, if we may regard Plato
as a worthy exponent of it, did not admit a plea of justification for
the slaying of a parent in any circumstances. ‘In what other way (than
by death),’ says Plato, ‘would it be right to punish one whom no law
will permit, even in self-defence and in danger of his life, to slay
his father or mother ... and whom (the legislator) will bid to suffer
anything rather than perpetrate such a deed?’[220] We are convinced
that there was one thing, and one thing only, which would have been
accepted by Plato as a justification for such an act, namely, the express
command of Apollo himself. Apollo was the reputed founder of the Attic
Court Delphinium; he was regarded as the initiator of the distinction
between just and unjust slaying[221]: he appointed and controlled the
Exegetae or the Sacred Interpreters of the laws of ‘purgation’[222];
surely his command, impossible to disobey, would have been admitted as
a justification for the deed of Orestes. In the _Eumenides_[223] of
Aeschylus, Orestes says to Apollo: ‘Be thou my witness: show, Apollo,
whether I slew her justly. The fact of slaying I do not deny: do thou
decide whether in thy judgment I slew her justly or not, that I may tell
these judges here.’ And Apollo replies[224]: ‘I am a prophet and will
not deceive: never, in my oracular shrine, have I said aught that Zeus,
the father of Olympian gods, doth not command. Take note, ye judges, of
the value of such a justification.’ So, in the _Electra_ of Sophocles,
Orestes says[225]: ‘When I approached the oracular shrine of Pytho, to
learn whereby I might punish the murderers of my sire, Phoebus made
answer: “No host of shielded warriors, but thine own guileful craft, O
prince, and thine own arm shall deal the death-blow righteously.”’ Even
in the _Orestes_ of Euripides, a drama in which, as we shall see,[226]
the plea of justifiable matricide is almost entirely absent, Orestes
tells the Chorus[227]: ‘Behold! Apollo, who in his palace in mid-earth
gives to mortals oracles most clear, by whom we are entirely guided—him I
obeyed when I slew my mother. ’Twas he who erred, not I. Is it not enough
to remove “pollution” if I transfer the guilt to the god?’

Again, in the post-Homeric form of the legend of the Theban Oedipus, it
is Apollo who commands the Thebans to search for the murderer of Laius,
and, when they have found him, to put him to death or to drive him from
the land.[228] In this option of death or exile we have the normal
Attic, and, therefore,[229] the normal Greek penalty for wilful murder.
The direction which Apollo gives, in the _Oedipus Rex_ of Sophocles,
is quite general.[230] Apollo speaks therefore as a lawgiver, and as a
deity angered by unpunished homicide, rather than as a prophet; since he
conceals for a time his knowledge of the slayer of Laius. In historical
Greek law the penalty for parricide was invariably death. If Apollo
had proclaimed the death penalty without the option of exile, for the
slayer of Laius, the famous drama of Sophocles would have had to be
considerably if not fundamentally altered. The area of the ‘search’ would
have been limited to the kinsmen of the deceased Laius. The Homeric
story of Oedipus is so very different from the later ‘tragic’ story that
the evolution of the legend must have been attended with considerable
difficulty. Legend-makers could not ignore the Homeric saga which
told[231] how Oedipus, having slain his father, ruled over the Cadmeans,
even though ‘the gods revealed these things to men.’ How was this fact
to be explained from the standpoint of the post-Homeric doctrine of
‘pollution’ according to which all wilful parricides were inexorably put
to death? We have suggested that Homer did not understand the mysterious
immunity of Oedipus, and that this immunity was derived from a Pelasgian
story, based on Pelasgian legal distinctions, to the effect that Oedipus
did not really know that it was his father whom he slew, and that
therefore Oedipus could not be regarded as a parricide of full guilt.
It is also possible to suppose that the old Pelasgian story contained a
reference to a further extenuation of Oedipus’ guilt, namely, a certain
_provocation_ on the part of Laius and his attendants; Sophocles says
that Oedipus was insulted by the herald of Laius and that Laius smote him
on the head with his goad.[232] Sophocles tells us also that when all the
facts concerning the death of Laius had come to light, Kreon, instead
of proceeding to punish Oedipus, decided to consult again the oracle
at Delphi. Thus, when Oedipus, anxious to avail himself of the option
of exile, asks Kreon to drive him from the land, Kreon answers[233]:
‘Assuredly I should have already done so, did I not first desire to
learn from the god what should be done.’ Now if the deed of Oedipus had
nothing to extenuate it beyond the fact that he did not know his father
when he slew him, he would still have had to suffer the penalties of
wilful murder, namely, death or perpetual exile. If, then, Kreon did not
immediately proceed to punish Oedipus, but consulted Apollo a second
time, this must be attributed either to the element of involuntariness or
to the element of provocation, or to both these elements in the legend
of Oedipus. These elements of provocation and involuntariness are most
important for the legal intelligibility of the _Oedipus Coloneus_, as we
shall see later.[234] At present we wish to emphasise the fact that this
legend, like the legend of Orestes, became, so to speak, ‘Apollinised’ in
post-Homeric times. Such transitions are only intelligible if we assume
a connexion between Apollo and ‘pollution.’ We may infer that, in the
post-Homeric legend, Apollo took a lenient view of the guilt of Oedipus,
from the fact that, in the _Oedipus Coloneus_, the responsibility for his
continued exile is laid not upon Apollo, but upon Kreon and the sons of
Oedipus, who wish to enjoy the vacant throne of Thebes.[235] According to
Euripides,[236] Oedipus’ sons imprisoned him, but Kreon drove him into
exile.

In the _Orestes_ of Euripides[237] it is Apollo who saves Orestes from
the wrath of the Argives who have condemned him to death. Apollo decrees
that, when Orestes has endured a period of exile and has submitted to a
trial at Athens, the Argives must accept as their king a man whom they
had already deemed worthy of an ignominious death! In the _Electra_ of
Euripides,[238] Castor and Pollux refer, by way of prophecy, to the fact
that Apollo will ultimately secure Orestes’ deliverance from the Erinnyes.

In the _Ion_ of Euripides[239] the Pythian priestess of Apollo commands
Ion not to slay Creusa, who had attempted to poison him, and who
otherwise would have urged in vain her plea of self-defence and the
sacredness of her sanctuary.

In the _Andromache_ of Euripides, Apollo is criticised for having
permitted the slaying of Neoptolemus within the precincts of the temple
at the hands of Orestes and the Delphians. The Messenger says[240]: ‘Thus
has the Lord who gives oracles to others, who is the umpire for all
men of what is right, requited the son of Achilles ... like any wicked
mortal, he stores in his memory an ancient quarrel.’

Thus the conception of homicide as a pollution permeates all Greek
tragedy: however various the legends, however different the localities
to which they refer, they all breathe the same Apolline atmosphere. We
have already[241] quoted Herodotus’ opinion as to the universality of
the ‘purgation’ rites by which the pollution of homicide was cleansed.
If it be true, moreover, that the laws which regulated the historical
Greek treatment of homicide were more or less identical in all the more
important and advanced Greek States, would not this fact suggest that the
origin of these laws must be sought, not in the genius of occasional
local legislators, but rather in the simultaneous universal operation of
identical causes? One of these causes, we believe, was the doctrine of
pollution.

The legends of Attic tragedy on the whole suggest a uniform system of
murder-law in historical Greece. In Euripides’ _Orestes_[242] we are
told that Orestes did not follow ‘the common law of the Greeks.’ In
the _Heracleidae_,[243] Eurystheus, referring to a threat of murder on
the part of Alcmene, says: ‘By the laws of the Greeks, if I am slain I
shall cause my slayer to be polluted.’ In the _Hercules Furens_,[244]
Hercules, the slayer of his children, feels that men’s doors will
be closed against him in all parts of Greece, without exception. We
have already[245] referred to the possibility that a more severe code
of penalties for homicide existed at Sparta than in other parts of
Greece. Xenophon[246] says that a certain Dracontius was condemned to
perpetual exile for involuntary homicide. If we have here a really
exceptional penalty, we must attribute it to the peculiarly military
character of the Spartan State. But can we be sure that the penalty
was exceptional? Plato decrees perpetual exile for involuntary slaying
between strangers in any given State[247]; moreover, for slaying in a
passion, which is quasi-involuntary, he decrees perpetual exile for the
second offence.[248] Xenophon does not give us sufficient details about
Dracontius to enable us to regard this penalty as a definite exception.
Again, in regard to Crete, we have indicated[249] the absence of any
reference to wergeld in the laws of Gortyn. This shows the influence
of some universal Greek doctrine which led to its abolition. The fact
that Apollo was said to have received many of his Delphic priests from
Crete,[250] and the fame of the Cretan purifier, Epimenides, in the
seventh century B.C., point to the same conclusion.


WERGELD AND PRIVATE SETTLEMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    ἥκω γὰρ ἐς γῆν τήνδε καὶ κατέρχομαι.

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

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

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

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

    Indignor quandoque bonus dormitat Homerus.

There is another passage in Demosthenes, to which Glotz seems to attach
considerable importance, but which does not in our view warrant the
conclusion which he has drawn from it. In a speech _against Nausimachus_,
in which an action for breach of trust is brought by the plaintiff
against his guardian Aristaechmus, who had, fourteen years before,
compromised the dispute by a payment of three talents, Demosthenes is
naturally led, in defence of Aristaechmus (or his son) the plaintiff, to
emphasise the dishonesty of proceeding with an action where a ‘release’
has been previously granted. Incidentally, the orator happens to refer to
‘private settlements’ for homicide in the following passage[303]: ‘This I
presume you will all acknowledge, that other people have suffered wrongs
before now, of a more grievous nature than pecuniary wrongs, for example,
unintentional homicides, profane outrages and many similar offences
are perpetrated; yet in all these cases the injured parties are finally
and conclusively barred when they have come to a settlement and given a
“release.” This rule of justice is so universally binding that when a
man has convicted another of intentional homicide and clearly proved him
to be “polluted,” yet if he afterwards condones the crime and “releases”
him he has no longer the right to force the same person into exile. Nor
again where the murdered man has released his murderer before he died,
is it lawful for any of the relatives to prosecute, but those whom the
laws sentence, upon conviction, to banishment or exile or death, if they
have been released, are by that word “release” at once absolved from all
penal consequences.’ This passage is repeated verbatim in the speech
_against Pantaenetus_.[304] Müller[305] points out that both passages
are ‘disputed’ by many scholars. He thinks that there should only be a
reference to involuntary homicide.

It is of course possible that for the word ἐκουσίου (voluntary)
Demosthenes wrote ἀκουσίου (involuntary). So Müller would emend the
passage. But, apart from such a solution, the very fact that Nausimachus
was legally entitled to sue, even after a ‘compromise’ or ‘release,’
proves that Demosthenes is rhetorical rather than logical. As the passage
stands, it is in direct conflict with the law of Dracon forbidding
‘amercement’ after conviction, a law which we have already quoted.

We are convinced that such ‘settlements’ were illegal and criminal in
cases of wilful murder. In manslaughter cases, at least one year’s exile
was necessary, with or without trial.[306] In practice some of the
relatives may have drawn up a ‘release’ immediately, and such relatives
could not perhaps take part in expelling the slayer. Our conclusions
on this question will appear more fully later.[307] We have already
referred[308] to ‘the release’ which was given by the dying as a most
important factor in Greek homicide-law. We also admit that ‘settlements’
were occasionally made, though not legally authorised, and it is clear
that such ‘settlements’ could easily be confused with the ‘appeasement’
of relatives in manslaughter cases, especially in the pleadings of an
orator.

We should contrast with this Demosthenic passage another from the speech
_against Aristocrates_,[309] in which there is reference to involuntary
homicide. ‘If,’ he says, ‘the accused be convicted and be found to have
done the deed, neither the prosecutor nor anyone else has control over
him, but the law alone. And what does the law command? That a person
convicted of involuntary homicide shall on certain stated days leave the
country by an appointed road and remain in exile until he has appeased
certain of the relatives of the slain ... above all it is right that the
laws should control everybody and everything.’

Similarly, in his speech against Meidias,[310] a judge who accepted money
in settlement of a prosecution for ‘assault’ is said to have taken no
account of the laws: and another man who ‘settled’ a case of assault is
said ‘to have bidden farewell to the laws.’

As an instance of Demosthenes’ rhetorical skill in the distortion of the
meaning of words, we may refer to a passage in the Third Philippic.[311]
The question at issue was really one of treason, not of murder. A
certain Arthmius of Zelea (in Asia), having distributed Persian gold for
political purposes at the time of the Persian invasion of Greece, was
solemnly declared ἄτιμος by the Athenian people. Now a decree of ἄτιμία
for treason involved much more severe consequences than the historical
exile penalty for murder. It was the sole historical survival of
collective and hereditary punishment, and involved not only the traitor
but also his family and all his posterity (αὐτός τε καὶ γένος).[312] In
practice, no doubt, it was but a trifling penalty to an Asiatic, like
Arthmius, who had no intention of living at Athens or in the Athenian
confederacy. But Arthmius was declared by this decree to be an outlaw
within the territory of Attica or within the Athenian Empire. If found
within this territory, he, or his descendants, could be slain with
impunity. Demosthenes, anxious to illustrate the patriotism of the
Athenians of former days, compared with that of his contemporaries, by
showing the severity with which treason was formerly punished, even in
a foreigner, has recourse to the subtle hypothesis that ἄτιμος in the
decree against Arthmius did not mean merely ‘degraded’ from civic rights
but should be linked up with a verb τεθνάτω, to form a clause which means
‘let him be slain with impunity.’ The word ἄτιμος in this decree has, he
says, the same significance as it bears in the murder-laws ‘in the case
of murderers for whom the legislator forbids a prosecution for homicide,’
where it is said ‘ἄτιμος τεθνάτω.’ It is true that the word ἄτιμος could
be used to mean ‘unpunished,’ but when the Athenians declared a person
ἄτιμος, they meant by the word ‘degraded’ not ‘unpunished.’ They declared
the person ‘dishonoured,’ or degraded from civic privileges. Moreover, in
the laws of Dracon as Demosthenes quotes them the word ἄτιμος does not
occur, and the adverb used to denote ‘with impunity’ is νηποινεί. Plato
also has ἀνατί.[313] Demosthenes, then, is quite capable of juggling with
words and with the wording of laws, in his desire to secure a rhetorical
victory. But here Demosthenes, without knowing it, weakens the very point
which he desires to emphasise. A decree of ἄτιμία for treason was much
more severe than any penalty in the Attic murder laws. A murder-exile
could be slain with impunity, as a traitor could, if found within
Athenian territory. But his descendants could not! His family could
remain securely at Athens, in full enjoyment of civic rights. If the word
ἄτιμος in the decree against Arthmius meant what Demosthenes asserts
that it meant in the murder-laws, then it is incorrect to speak of the
punishment of the traitor and his descendants (αὐτός τε καὶ γένος). Now
what does Demosthenes mean by the phrase ‘in cases where the legislator
forbids a trial for homicide’[314]? The context gives the only possible
meaning: he means, in cases where _an already convicted murderer_
returned to forbidden territory and could be slain with impunity without
trial.

We shall return to this question in our next chapter, when treating
of manslaughter in Attic law, but we may for the present conclude,
as the most probable hypothesis, that in historical Athens ‘private
settlement’ as a means of absolution from homicide guilt was sinful and
legally punishable, in all cases where the dying victim did not grant a
‘release’ and where a public prosecution was otherwise legally possible.
This hypothesis, if correct, shows that amongst the Greeks, as amongst
the Semites, wergeld was abolished by the religious doctrine of homicide
as a ‘pollution,’ as an offence against supernatural beings.

Assuming, as a result of our general reasoning in this chapter, and
for other reasons which will presently appear, that the historical
murder laws of Greece were as universal and as uniform as the Greek
purgation-rites for homicide, assuming that the novelties which they
contain, in regard to their ideals of punishment, and their insistence
on compulsory State trial, were not the creation of local legislators,
but the product of international Amphictyonies which expressed their
compacts in oracular decrees—compacts which were only gradually evolved
in a compromise between local customs or desires and a new religious
doctrine which was adopted from Asiatic peoples—we will now proceed to a
brief colligation of the Laws of Dracon concerning homicide, and after
giving such commentaries as these laws may seem to demand, we will then
review the Attic murder-courts and offer an explanation of their origin
and evolution.


FOOTNOTES

[1] Thuc. i. 12.

[2] _H. and H._ p. 259.

[3] _Op. cit._ p. 54.

[4] _Ib._ p. 255.

[5] _Op. cit._ p. 259.

[6] _E.A.G._ p. 405.

[7] P. 330.

[8] _Dorians_, vol. ii. pp. 64-6; see also Ridgeway, _op. cit._ p.
659, and Thuc. ii. 101, iv. 78, viii. 3; Demosthenes, _Phil._ ii. 71,
_Olynth._ ii. 20.

[9] _Op. cit._ ii. 71.

[10] iv. 126.

[11] _E.g._ Holm, _H.G._ i. 175; Gilbert, _G.C.A._ p. 4; Herod. v. 72,
vi. 51.

[12] Pausanias, iii. 22. 7.

[13] Müller, _op. cit._ ii. 18-23.

[14] Athenaeus, vi. 265; Müller, _op. cit._ p. 31.

[15] Müller, _op. cit._ ii. 54-8.

[16] _Op. cit._ p. 334.

[17] _Ib._ p. 250.

[18] Leaf, p. 315; Müller, _Dorians_, ii. 71.

[19] _Op. cit._ p. 259.

[20] _Op. cit._ vol. ii. p. 18.

[21] _H.G._ i. 180.

[22] _H.G._ vol. ii. chap. 6, p. 262.

[23] _Op. cit._ pp. 10, 40.

[24] _Anab._ iv. 8. 25; _infra_, p. 173.

[25] See Aristotle, _Politics_, 1271 b 22; Strabo, x. 481.

[26] _E.A.G._ p. 629.

[27] _Op. cit._ p. 339.

[28] _Dorians_, ii. 65.

[29] P. 52.

[30] _H.G._ p. 161.

[31] _Life of Philip_, p. 30.

[32] i. 2 (Jowett).

[33] i. 6.

[34] i. 12.

[35] _Op. cit._ p. 225 ff.

[36] _Works and Days_, 182-193; _supra_, p. 122.

[37] _Op. cit._ p. 228.

[38] See also Coulanges, _op. cit._ p. 336 ff.

[39] Pp. 325-327.

[40] P. 397.

[41] i. 12.

[42] _Op. cit._ pp. 171-2.

[43] _i.e._ apart from the Erechtheum (i. 26).

[44] Coulanges, pp. 171-2.

[45] P. 173.

[46] _Theseus_, 24.

[47] ii. 15.

[48] _Dorians_, i. p. 256.

[49] _Op. cit._ p. 332.

[50] _Op. cit._ p. 169.

[51] See, further, article _J.H.S._ xl. Part ii. p. 202, and Pollux,
viii. 109-111.

[52] _Op. cit._ pp. 320 ff.

[53] _Ib._ p. 331.

[54] _Ib._ p. 338.

[55] _Ib._ pp. 345-6.

[56] _Ib._ p. 365.

[57] _Ib._ p. 369.

[58] _Op. cit._ p. 373.

[59] _Ib._ p. 354.

[60] See _infra_, Bk. II. ch. iii.

[61] See also Gilbert, _G.C.A._ (Eng. trans.), p. 350.

[62] Glotz, _op. cit._ p. 328.

[63] Coulanges, _op. cit._ p. 158; _supra_, p. 88.

[64] See Pollux, viii. 111.

[65] _Social Life in Greece_, pp. 16-18.

[66] _Greek Civilization_, p. 32.

[67] _Ib._ p. 41.

[68] Hall, _History of Near East_, p. 47.

[69] _H.G._ p. 77.

[70] _Op. cit._ p. 78.

[71] _Op. cit._ p. 113.

[72] _Ib._ p. 114.

[73] See Glotz, _op. cit._ pp. 231 ff.; Kinkel, _Epic. gr. fragm._ i. p.
33.

[74] i. 35.

[75] _Infra_, p. 151.

[76] _Supra_, p. 118.

[77] Cicero, _Top._ 17; Müller, _Eum._ p. 107.

[78] _Genesis_ ix. 6; _Numbers_ xxxv. 11-34.

[79] _I.e._ without intent to kill.

[80] _Exodus_ xxi. 12.

[81] _I.e._ if one slays by accident.

[82] _Exodus_ xxi. 12.

[83] _Numbers_ xxxv.; _cf._ _Deuter._ iv. 41, _Joshua_ xx. 1-9.

[84] _Op. cit._ p. 153.

[85] ii. 102 (Jowett).

[86] _Genesis_ iv. 11-15.

[87] _Laws_, ix. ch. 12.

[88] _Supra_, p. 110.

[89] ii. 2. 3.

[90] _Proleg._ p. 221.

[91] _Il._ vi. 155-205.

[92] Müller, _Eum._ p. 92; Smith, _Dict. Gk. Ant._ s.v. φόνος.

[93] _Op. cit._ p. 314.

[94] _Infra_, p. 173 ff.

[95] Dem. _in Aristoc._ 632, 634.

[96] _Op. cit._ p. 218; _infra_, p. 166.

[97] _Supra_, p. 122 ff.

[98] See _infra_, ch. ii.

[99] See _infra_, p. 181, and Dem. _in Androtion._ 593.

[100] Dem. _c. Pantaen._ 893, 59; _infra_, p. 176 ff.

[101] Lysias, _c. Agor._ 41, 78.

[102] 1-6.

[103] 5E.

[104] e.g. _Rep._ ii. 379D-383.

[105] _Laws_, ix. ch. 11.

[106] _Laws_, ix. ch. 9.

[107] Aesch. _Eum._ 886.

[108] _Ib._ 655, 660.

[109] P. 155; Dinarchus, 47; Antiphon _de Caed. H._ 11; Pausan. i. 28. 6.

[110] _Supra_, p. 112 ff.

[111] Aesch. _Eum._ 283.

[112] Eur. _Iph. T._ 1224.

[113] i. 24.

[114] i. 35.

[115] 255 ff.

[116] 470-485 (trans. L. Campbell).

[117] _sc._ vessel.

[118] 107.

[119] _Supra_, p. 148; Glotz, _op. cit._ p. 155.

[120] _Laws_, ix. ch. 8.

[121] But see _infra_, p. 153 ff.

[122] 1175-1230.

[123] Apollod. ii. 2. 3.

[124] i. 35.

[125] Aristotle, _Ath. Pol._ ch. 1.

[126] _Dorians_, i. 227-8.

[127] _Iph. Taur._ 1175 ff.

[128] _Eum._ 235-245, and 447-9.

[129] _e.g._ ix. ch. 12.

[130] _Eum._ 581.

[131] See Dem. _in Androtion._ 593, 26; and Plato, _Laws_, ix. ch. 12.

[132] _Eum._ 448.

[133] For the Attic Court Phreatto see _infra_, ch. iii.

[134] _Eum._ 451 ff.

[135] 470-485.

[136] See _supra_, p. 151.

[137] 840 ff.

[138] _Eum._ p. 136.

[139] _Areop._ p. 63.

[140] See Plato, _Laws_, ix. ch. 8.

[141] _Supra_, pp. 113 and 119 ff.

[142] _Infra_, p. 173 ff.

[143] _Il._ ix. 404.

[144] _Il._ ii. 520; Müller, _Dorians_, i. 226-232.

[145] 1-10; see also Pausanias, x. 5.

[146] _Cf._ Aesch. _Eum._ 18.

[147] x. 5.

[148] Harrison, _Themis_, pp. 396-429.

[149] See James, _Varieties of Religious Experience_, p. 387 ff.

[150] Euripides, _Ion_, 226 ff.

[151] _Ibid._ 225.

[152] _Eum._ 95-200.

[153] Ael. _Var. Hist._ iii. 1; Plut. _Q. Gr._ xii.

[154] Aeschylus, _Eum._ 440.

[155] _Dorians_, i. 297 ff.

[156] _Il._ ii. 517; ix. 405.

[157] See Bury, _H.G._ p. 361.

[158] _Op. cit._ p. 157.

[159] _Op. cit._ p. 695.

[160] Coulanges, _op. cit._ p. 279; Müller, _Dorians_, i. 258, 270, 272-9.

[161] Müller, _op. cit._ p. 232; and Euripides, _Ion_, 1111, 1220, 1256
there quoted.

[162] _Cf._ Plato, _Laws_, ix. ch. 11, _re_ kin-slaying: ‘let the judges
of these matters be the same as those to whom has been given the power of
deciding upon sacrilege.’

[163] Müller, i. 263-5.

[164] Bury, _op. cit._ p. 159.

[165] Law of Dracon, Dem. _in Arist._ 632.

[166] _Cf._ Coulanges, p. 279.

[167] Thuc. ii. 102.

[168] Her. vii. 197.

[169] _s.v._ ἐξηγηταί.

[170] _Laws_, vi. ch. 7.

[171] 1-6.

[172] _Ancient City_, p. 252.

[173] Xenophon, _Anabasis_, iv. 8. 25; see _infra_, p. 173.

[174] Arist. _Ath. Pol._ 7. 1.

[175] Plutarch, _Solon_, 17.

[176] _Op. cit._ p. 252.

[177] _Laws_, ix. ch. 12.

[178] See Aeschylus, _Agam._ 1557.

[179] _Supra_, p. 47 ff.

[180] See article, _s.v._ φόνος, in Daremberg and Saglio, p. 440.

[181] _Laws_, ix. ch. 12.

[182] See _infra_, pp. 229, 236 ff.

[183] See _infra_, ch. ii.

[184] Bk. ix. ch. 12.

[185] See Demosthenes _in Aristoc._ 637.

[186] See _Laws_, ix. ch. 8.

[187] ὁ ἐκ Δελφῶν κομισθεὶς νόμος ἤγουν χρησμὸς ἐπὶ τοῦ ἄκοντος ἀνέλοντος
τὸν φὶλον. ἔκτεινας σὸν ἑταῖρον ἀμύνων, οὐ σε μιαίνει αἷμα, φόνου δὲ
πέλεις καθαρώτερος ἢ πάρος ἦσθα ... ὁ ἀνδρὶ φιλῷ θνήσκοντι πάρων πέλας
οὐκ ἐπάμυνας, ἤλυθες οὐ καθαρός.

[188] Pausanias, i. 28. 10.

[189] _Supra_, p. 157.

[190] _In Aristoc._ 632.

[191] _Supra_, p. 145.

[192] _In Aristoc._ 632-634.

[193] _Infra_, p. 164 ff.

[194] See _supra_, p. 142 ff.

[195] _Op. cit._ p. 218.

[196] _Laws_, ix. ch. 8.

[197] _Ib._ ch. 11.

[198] _Ib._ ch. 8.

[199] τῆς χώρας τῆς τῶν νόμων τῶνδε κυρίας.

[200] Dem. _in Aristoc._ 647-8.

[201] _Loc. cit._

[202] _Supra_, p. 145.

[203] _Op. cit._ p. 218.

[204] _Ib._ p. 214.

[205] vii. 238.

[206] viii. 114.

[207] ix. 64.

[208] i. 156, 157.

[209] _Op. cit._ p. 214.

[210] _Pyth._ ii. 32.

[211] _Eum._ 444.

[212] See note, _Eum._ _ad loc._

[213] See edition of _Eumenides_, p. 78.

[214] _Supra_, pp. 21, 65.

[215] _Supra_, p. 142.

[216] _Laws_, ix. ch. 12.

[217] Schol. ad _Eum._ 444.

[218] 580 ff.

[219] _Infra_, Bk. III.

[220] _Laws_, ix. ch. 9.

[221] Müller, _Eum._ p. 141.

[222] _Supra_, p. 158.

[223] 612-616.

[224] 618-622.

[225] 32 ff.

[226] _Infra_, p. 348 ff.

[227] 600 ff.

[228] Sophocles, _Oed. Rex_, 95 ff.

[229] _Infra_, p. 173.

[230] _Infra_, p. 311. We do not attach any legal importance to Oedipus’
reference to _parricide_ (1441). It would have ruined the dramatic plot
if this word were mentioned earlier in the play.

[231] _Od._ xi. 271 ff.

[232] See _Oed. Rex_, 805 ff.

[233] _Oed. Rex_, 1438.

[234] _Infra_, Bk. III. ch. ii.

[235] Soph. _Oed. Col._ 600, 770.

[236] See _Phoenissae_, 60 ff., 1626; _infra_, p. 382.

[237] 1640 ff.

[238] 1245 ff.

[239] 1330 ff.

[240] 1155 ff.

[241] _Supra_, p. 139.

[242] 495.

[243] 1010 ff.

[244] 1282 ff.

[245] _Supra_, pp. 130, 158.

[246] _Anabasis_, iv. 8. 25.

[247] _Laws_, ix. ch. 8.

[248] _Ib._ ch. 9.

[249] _Supra_, p. 12.

[250] See Müller, _Dorians_, i. 227.

[251] _Areopag._, pp. 148-9.

[252] _Op. cit._ p. 314 ff.

[253] _Eum._ p. 123; _supra_, p. 112.

[254] _Eum._ p. 92.

[255] For conclusion see p. 213.

[256] _Supra_, p. 143 ff.

[257] See Lysias _c. Agor._ 40-42.

[258] See 94 ff., 117 ff., 179 ff.

[259] See Plato, _Laws_, ix. ch. 8, for greater and lesser purifications.

[260] _Op. cit._ pp. 237-8.

[261] _Ib._ p. 314 ff.

[262] See Plato, _Laws_, ix. ch. 11 and ch. 12; Pollux, viii. 90; Arist.
_Ath. Pol._ 57.

[263] P. 428.

[264] See _infra_, p. 181 ff.

[265] _C. Pantaen._ 983, 20; also _c. Nausimachum_, 991.

[266] Müller (_Eum._ p. 92) thinks this refers to manslaughter only.

[267] _C. Agor._ 40-42.

[268] _Ib._ 78.

[269] _Ib._ 96-7.

[270] Smith, _Dict. Gk. Ant. s.v._ φόνος, vol. ii. p. 385.

[271] _Eum._ p. 92.

[272] _Infra_, p. 205; see also p. 198.

[273] _Infra_, p. 210.

[274] We interpret the Greek words ἄφεσις and ἀφίημι as implying
‘release’ when blood-guilt is entirely remitted, as in the Demosthenic
passages cited on page 176. Plato, however, obviously applies the terms
to ‘partial release’ or forgiveness.

[275] _Laws_, ix. ch. 9.

[276] _Ibid._ ch. 8.

[277] _Eum._ p. 93.

[278] _Infra_, p. 186 ff.

[279] _Op. cit._ pp. 319-321, 363-364, p. 377.

[280] Dem. _in Aristoc._ 629-630; see also _infra_, p. 222.

[281] See _op. cit._ pp. 377-8.

[282] _Op. cit._ p. 373.

[283] Plutarch, _Solon_, 18.

[284] 593.

[285] ἀσεβείας γραφήν.

[286] συνέβη.

[287] _Op. cit._ p. 322.

[288] _Ib._ pp. 314, 324, 372.

[289] 1-6, especially see 5 E.

[290] _C. Euerg. et Mnesib._ 1161.

[291] _Supra_, p. 143 ff.

[292] _Op. cit._ p. 314.

[293] _Ib._ p. 324.

[294] 1331 (Reiske).

[295] _Areop._ pp. 148-9.

[296] _Op. cit._ p. 315.

[297] 1154-1166.

[298] _Choeph._ 3.

[299] λάθρα γὰρ ἦλθεν, οὐ πιθὼν τοὺς κυρίους.

[300] _Op. cit._ p. 315.

[301] _Eum._ 317, 428, 496, 656 ff.

[302] _Infra_, p. 340 ff.

[303] 991. _Cf._ also _c. Pantaen._ 983.

[304] 983 (Reiske).

[305] _Eum._ p. 92.

[306] _Infra_, p. 213.

[307] See _infra_, p. 212 ff.

[308] _Supra_, pp. 146, 178.

[309] 63 ff.

[310] 526-7.

[311] iii. 44.

[312] Glotz, _op. cit._ p. 465 ff.; Dem. _in Arist._ 640.

[313] _Laws_, ix. 871E.

[314] ὑπὲρ ὧν μὴ διδῷ φόνου δικασάσθαι.




CHAPTER II

THE DRACONIAN CODE

    Restored inscription of 409-8 B.C. and author’s explanation:
    other Draconian homicide-laws derived from Demosthenes: Plato’s
    code confirms and supplements these data: classification
    of Attic homicide laws as follows: (_a_) those relating to
    accidental homicide, to death caused by animals or inanimate
    objects; and to homicide by persons unknown: (_b_) those
    relating to justifiable and to justifiably accidental homicide:
    (_c_) those relating to manslaughter: (_d_) those relating to
    wilful murder: some problems suggested by these laws: origin
    of confiscation of property: evolution of State-execution:
    parricide and kin-slaying: historicity of Plato’s legislation
    regarding homicide.


The only direct source of evidence which we possess for the historical
murder-laws of Attica—for the murder-laws of other Greek States we have
no direct evidence at all—is a fragmentary inscription of the year
409-8 B.C., containing a few lines written in the old Attic alphabet,
which, though ‘restored’ in a manner sufficiently satisfactory to
render it trustworthy and intelligible, gives us nevertheless the most
rudimentary information about the Attic murder-code. The real value of
this inscription has been indicated by Lipsius.[1] The fragments of
laws which are found on the inscription are so closely identical with
the corresponding portions of the Draconian laws as they are cited
by Demosthenes that they must, he says, be regarded as furnishing a
convincing proof of the validity of the remaining laws which Demosthenes
has cited. Now, these remaining laws are written in the Ionic alphabet,
which was used by Athenian writers in the fourth century and in the
latter half of the fifth century B.C., and it so happens that the date
of the change in the alphabet used in Attic inscriptions, namely, the
year 403-2 B.C., was also the date of what Glotz[2] describes as ‘la
grande révision législative qui signala l’archontat d’Euclide.’ If, then,
any changes occurred in Attic murder-law, in the period which elapsed
between Dracon and Eucleides, it was probably in the year 403-2 B.C.
that such changes were finally incorporated in the written code. We
shall see that there is no reference to the Areopagus in our fragment,
but it may of course have been mentioned in the missing portion of the
inscription which referred to wilful murder. Pollux and Plutarch[3]
state that the Areopagus was created by Solon. We shall see later[4]
what elements of truth this dictum may contain. The only change which
we believe to have been made in the period from Dracon to Eucleides was
the isolation of the Areopagus from the general list of the Ephetae
courts.[4] This change we attribute to Solon, and with this exception we
accept the murder-laws which are quoted by Demosthenes as the original
code of Dracon. We have already[5] argued against the theory of Glotz
that the clause μηδ’ ἀποινᾶν was a Solonian innovation. The alteration
which we attribute to Solon was not properly speaking a change in the
murder-code, but merely a change in the distribution of pleas in the
judicial system. Hence we accept the ancient tradition[6] that ‘Solon
changed all the laws of Dracon except those relating to homicide.’ The
Solonian legislation was less severe and more humane than Dracon’s code.
If Solon did not alter the murder-laws, it was probably because they
were, so to speak, so non-Draconian, because they did not bear the stamp
of Dracon’s own peculiar genius. They were, we have said,[7] an eclectic
codification of the unwritten laws of the Ephetae and the Exegetae.
Religiously consecrated by their joint tribal and Apolline inspiration,
they stood above the gales of Athenian political ferment. It was only
in the personnel of the judicial system that a loophole was left open
for political intrigue. In this respect alone was alteration easy and
obvious: and in this respect alone do we suppose that alterations took
place.

The original inscription of 409-8 B.C. consists of forty-eight lines, of
which six are undecipherable, and nine others badly mutilated. We will
give here just four of the best lines, from which the condition of the
remainder may be inferred.

    11.               και εαμ . εκ . ρονο..ς .τ.... ... .... ....... .ι
    12. καζεν δε τος βασιλεας αιτ . ο . φο... ε... ... ........ .. ...λ
    13. ευσαντα τος δ. εφετας διαγν....  ........ ....   ...   .....  ε
    14. ι ε αδελφο. ε Ηυες Ηαπα.... ε το . .ο...... ..... ... ..  .. .υ

The most important portion of the inscription, as restored by Köhler, is
given by Dareste,[8] and transliterated into the Ionic alphabet reads as
follows:

    11. καὶ ἐὰμ μ’ ἐκ προνοίας κτείνῃ τίς τινα, φεύγειν, δι-
    12. κάζειν δὲ τοὺς βασιλέας αἰτιῶν φόνου ἢ ἐάν τις αἰτιᾶται ὡς βουλ-
    13. εύσαντα, τοὺς δὲ ἐφέτας διαγνῶναι, αἰδέσασθαι δ’ ἐὰμ μὲν πατὴρ ἦ-
    14. ι ἢ ἀδελφὸς ἢ ὑῆς ἁπάντας ἢ τὸν κωλύοντα κρατεῖν. ἐὰν δὲ μὴ οὗ-
    15. τοι ὦσι, μέχρ’ ἀνεψιότητος καὶ ἀνεψίου, ἐὰν ἅπαντες αἰδέσασ-
    16. θαι ἐθέλωσι τὸν ὅρκον ὁμόσαντας. ἐὰν δὲ τούτων μηδεὶς ᾖ, κτεί-
    17. νῃ δὲ ἄκων, γνῶσι δὲ οἱ πεντήκοντα καὶ εἷς οἱ ἐφέται ἄκοντα
    18. κτεῖναι, ἐσέσθων δὲ οἱ φράτερες, ἐὰν ἐθέλωσι, δέκα, τούτους δὲ ο-
    19. ἱ πεντήκοντα καὶ εἷς ἀριστίνδην αἱρείσθων. καὶ οἱ πρότερ-
    20. ον κτείναντες ἐν τῷδε τῷ θεσμῷ ἐνεχέσθων .........
    26. .. ........................ ἐὰν δέ τις τ-
    27. ὸν ἀνδρόφονον κτείνῃ ἢ αἴτιος ᾖ φόνου ἀπεχόμενον ἀγορᾶς ἐφο-
    28. ρίας καὶ ἄθλων καὶ ἱερῶν Ἀμφικτυονικῶν ὧσπερ τὸν Ἀθηναῖον κ-
    29. τείναντα ἐν τοῖς αὐτοῖς ἐνέχεσθαι, διαγιγνώσκειν δὲ τοὺς Ἐφέτας.
    30. τοὺς δὲ ἀνδροφόνους ἐξεῖναι ἀποκτείνειν καὶ ἀπάγειν ἐν τῆι ἡμεδ-
    31. απῆι, λυμαίνεσθαι δὲ μὴ, μηδ’ ἀποινᾶν ἢ διπλοῦν ὀφείλειν ὅσον ἂν κ-
    32. αταβλάψηι ..............................
    37. ..... ἐὰν δέ τις φέροντα ἢ ἄγοντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενο-
    38. ς κτείνηι, νηποινεὶ τεθνάναι.[9]

This inscription has been restored, mainly, from quotations in the
speeches of Demosthenes. But before attempting to translate it, we must
point out that even in its restored form the inscription is archaic and
obscure, and the meaning is not always certain. The first half of the
inscription seems to refer to involuntary or accidental homicide. But the
end of the second line, as it stands, cannot possibly be taken to refer
to accidental homicide, because the verb βουλεύειν usually means ‘to
plot’ or ‘to resolve,’ and therefore implies an element of deliberation.
Wilful murder is not expressly mentioned, save in so far as the slaying
of a homicide exile abroad is decreed to be equivalent to murder. There
is also a reference to justifiable homicide in self-defence. But most
of the fragment consists of an enumeration of the persons who are by
law entitled to share in the acceptance of gifts of ‘appeasement’ from
an involuntary slayer: and of the judges by whom the various kinds of
homicide must be decided. We do not believe that any judicial distinction
is intended in the use of the two verbs δικάζειν and διαγιγνώσκειν.
Both words mean, we think, ‘to adjudicate.’ There is no question of
preliminary investigation as distinct from final decision. In regard to
the second line, the restoration ὡς βουλεύσαντα can only mean ‘on the
ground of having plotted (to kill).’ Did the restorer mean by this clause
‘attempting murder’ (when death did not ensue) or ‘contriving murder’
(when death did ensue)? The noun βούλευσις can have both these meanings,
but the verb βουλεύειν cannot, we think, denote attempts to kill. If the
restorer meant ‘contriving murder,’ such an interpretation is open to the
following objections: (1) ‘contriving murder’ ranked with wilful murder
in Attic law, and was tried by the Areopagus, not by the Ephetae[10]: (2)
it is rightly maintained[11] that the presence of καί at the beginning of
the inscription indicates that a portion is missing, and it is natural
to assume that this missing portion contained the law relating to the
graver kinds of homicide, including not only wilful murder, but also
contriving murder. In order to obviate such objections, Philippi abandons
the verb βουλεύειν and proposes to read βουλεύσεως τὸν ἀεὶ βασιλεύσαντα,
‘the King-archon for the time being shall judge concerning attempted
murder.’ But this suggestion is open to the following objections: (1)
we are compelled to render διαγνῶναι (l. 13) ‘to adjudicate finally,’
and we do not think that it bears this meaning in the inscription; (2)
τὸν ἀεὶ βασιλεύσαντα is a very questionable Greek rendering for ‘he who
is King-archon for the time being’: (3) while it is true that attempted
murder was tried, in Aristotle’s time,[12] in the Palladium, it has no
real affinity with manslaughter. It is impossible to suppose that the
‘appeasement’ mentioned in the inscription could have ever been applied
in cases of attempted murder. It would be absurd to compensate relatives
who had lost nothing, and to ignore the person on whose life the attempt
was made. Demosthenes definitely cites[13] this law of ‘appeasement’ as
referring to manslaughter. Hence, as we believe that the second line of
our inscription refers to manslaughter and as λευσαντα (_sic_) is found
in the unrestored part of the inscription, we propose to restore μὴ
βου]λεύσαντα instead of ὡς βου]λευσαντα and understanding κτεῖναι with
αἰτιᾶται, we translate ‘if anyone accuses a person of slaying without
deliberate resolve.’

We will now suggest a translation of this passage, reading μή instead of
ὡς in the second line.

‘And if a man slays a man not with intent (to kill), let him be put
on trial (φεύγειν), and let the “Kings” judge of the causes of death,
or, if anyone accuses a person of slaying without deliberation (μὴ
βουλεύσαντα), let the Ephetae adjudicate. And the “appeasement,” if there
is a father or (and) brother(s) or (and) sons (of the slain), let all
(accept) or let one objector hold the field: if there be none of these,
let (the “appeasement” extend) to cousinship and cousins, provided all
consent to be “appeased” having sworn the (customary) oath: if there
be none of these (_i.e._ cousins) and if the man slays involuntarily,
and the Fifty-one, the Ephetae, decide that he slew involuntarily, let
ten phrateres permit his return from exile,[13A] if they (all) agree,
and let the Fifty-one select these (ten) according to birth (or rank
or merit—ἄριστίνδην), and let (all) previous slayers be bound by this
law: ... and if any person slays a manslayer or causes (_i.e._ plots)
his death while the manslayer abstains from the boundary markets and
from Amphictyonic games and festivals, let him be liable to the same
penalty as if he had slain an Athenian (citizen): and let the Ephetae
judge the case: ... it is lawful to kill manslayers or to arrest them,
in our territory (ἡμεδαπῇ) but it is not lawful to torture them or to
amerce them: the fine payable shall be twice the amercement: ... if any
person slays on the spur of the moment in self-defence a man who tries
by violence unjustly to rob and plunder him, let his act of bloodshed go
unpunished.’

Philippi[14] finds the reference to ‘the kings’ in this inscription
rather difficult to explain. He thinks that the allusion can only be
to archons, but he feels also that ‘it seems inadmissible to assume
collegiate functioning after the archonship became annual.’ He therefore
views with sympathy the extraordinary suggestion of Köhler, that τὸς
βασιλέας means τοὺς ἀεὶ βασιλεύοντας, that ‘the kings’ are ‘those who
from time to time held the office of king-archon.’ The solution of this,
as of other difficulties in the inscription, is, we believe, to be found
in a correct analysis of the word ἄκων, which means ‘involuntarily’ or
without intent.

Let us suppose that a man A caused the death of another man B. Obviously
this event could occur either (1) in an accidental manner, without
the least possible foresight or culpable neglect, as for instance in
a wrestling-match or in a javelin-throwing competition: or (2) in
circumstances which implied a certain amount of culpable neglect, or
ἀφυλαξία, because the slayer did not take the usual or the necessary
precautions—as, for instance, if a drug was administered, in illness, to
B, and A did not see to it that the drug was of the proper kind: or (3)
in a manner which involved a certain amount of intent or deliberation,
though not necessarily ‘malice aforethought,’ on the part of the slayer,
as, for instance, if A struck B in a drunken bout, or in a sudden fit of
anger, jealousy or revenge. Plato,[15] in the _Laws_, makes the clearest
possible distinction between these cases, and so does Antiphon[16] in
his _Tetralogies_. But the Greek words ἄκων and ἀκούσιος were applied
indiscriminately to all three cases!

The Greeks of historical times actually put on trial inanimate objects
which had slain a man. Why? Was it because these objects were regarded as
polluted and it was necessary to discover the extent of the pollution?
We do not think so, for such objects were either polluted or they were
not. There could have been no question of degrees of pollution. The
purpose of such a trial was rather, we think, to inquire whether the
objects were guilty or not. But why was this question of such importance?
Clearly because there was a human, as distinct from a divine, interest
in such trials. We suggest that these trials were instituted primarily
in order to establish the innocence of an accused man. In Greek law,
unlike modern law, it was necessary for a man to prove his innocence.
He could only do this, very often, by proving that somebody else,
or something else, was guilty. We do not agree with Müller[17] and
Philippi[18] in regarding these trials (δικαὶ ἀψύχων) as sham trials.
Presided over by five ‘kings,’ as Aristotle[19] assures us that they
were, they cannot have been so altogether meaningless and absurd. They
were, we think, almost as important as a modern Coroner’s inquest. Now,
who, we may ask, were the five ‘kings’ who sat at the Prytaneum ‘murder’
court in the time of Aristotle? They were, simply, the King-Archon,
and the four Phylobasileis, or Tribe-Kings, who still survived as the
religious and judicial representatives of the old Ionian tribes of
Attica. These kings are therefore the aristocratic descendants of the
Elders who ‘sat on smooth stones in a sacred circle,’ in the Pelasgian
Age.[20] The Prytaneum, as Glotz[21] points out, was the oldest court
at Athens. Coulanges[22] connects this court with the worship of the
ancestral-hearth; it was, he thinks, the divine ‘hearth-stone’ of the
nation, the source of its vitality, the symbol of its immortality. Yet
this court Müller and Philippi regard as a mock or sham-court, in which a
number of respectable but unintelligent nobles persisted in upholding the
obsolete traditions of a ridiculous past!

We believe that ‘the kings’ of the Prytaneum Court are identical with
‘the kings’ of our Draconian inscription. The first two lines of the
fragment refer, in our view, to accidental slaying, in which there
was no degree of guilt attaching to the human agent, but in which it
was necessary to prove that the guilt was attached to an animal or an
inanimate object. We think it quite probable that such cases were tried
at the Prytaneum.[23] We may go so far as to say that such cases were the
_raison d’être_ of the survival and the historical importance of such
a court.[24] The legislator, in our inscription, says: ‘If a man slays
another without intent, let him be put on trial, let “the kings” judge of
the causes of death’ (δικάζειν αἰτιῶν φόνου).

We shall discuss[25] later the function of the Ephetae judges who
are mentioned in this inscription as collaborating with the kings in
the judicial investigation of homicide-guilt, and we shall suggest
an explanation of the fact that they were invariably fifty-one in
number.[26] In regard to the adverb ἄριστίνδην, which means, in general,
‘according to excellence,’ we agree with Philippi[27] that in the context
it refers to birth rather than to social rank. The selection of the
phrateres would probably have been made from ‘brethren’ who were not
kinsmen of the slayer, but merely related by ties of ‘affinity’ or of
local contiguity with him. Plato[28] suggests that in certain cases of
homicide the judges of guilt (and probably therefore of atonement) should
not be akin to the criminal. The fact that the father and the brothers
(we assume that the singular form ἀδελφός includes all the brothers) and
the sons of the slain could, if unanimous, have accepted ‘appeasement’
and have legalised the manslayer’s return from exile, shows how far from,
and yet how near to, the wergeld customs of Pelasgian days were the
historical murder laws of Greece. Yet here we have not wergeld proper,
but only a survival, a reflection, of its ancient vigour. Nothing could
show more clearly than this law does the validity of our theory[29]
which finds in a ‘compromise’ between different forces the origin of the
historical homicide-code of Greece.

Glotz[30] holds that the objection of a single relative to ‘appeasement’
could neutralise the will of the other kinsmen because, if he were
obdurate, he could prevent the unanimity which was required by law for
such return. But we shall argue, later,[31] that while the relatives had
considerable legal powers if they were unanimous, they were probably
subject to superior control if they disagreed. It is difficult to suppose
that one bitter enemy amongst the relatives of the slain could, _in
practice_, have imposed a penalty of perpetual exile for manslaughter.

We have discussed[32] the theory of Glotz that ‘private settlement’ was
legal, even for wilful murder. How can Glotz reconcile such a theory with
this Draconian law which provided for[33] a trial and a verdict even in
cases of accidental slaying? According to our interpretation of the
restored inscription, the relatives of the slain may not always agree,
but the kings and the Ephetae must adjudicate in each case.

Glotz suggests,[34] further, that Dracon first introduced the distinction
between murder and manslaughter. Is this the view which is suggested
_prima facie_ by the restored inscription? To us it seems quite obvious
that the inscription assumes, as a familiar fact, an already existing
distinction, not merely between murder and manslaughter, but also between
manslaughter and accidental slaying. If the distinction appeared as a
legal innovation in the Draconian legislation, surely such a distinction
would have received some emphasis, since it would have been necessary to
enlighten an uncivilised public opinion; surely the definitions of the
various kinds of homicide would have been more clearly marked and the
penalties more clearly indicated.

Since the Draconian inscription has been restored from quotations in
Demosthenic speeches, we shall turn to those speeches for a more complete
account of Attic homicide law. But the Demosthenic references must be
supplemented from other sources—especially from Plato’s penal code.


HOMICIDE LAWS IN PLATO AND DEMOSTHENES

If we accept the opinion of Coulanges[35] that the synoekism of Attica
did not abolish the local prytanies and magistracies, it will be readily
conceded that the Athenian city courts, that is, the Attic State courts,
did not necessarily adjudicate in all cases of homicide. Owing to the
civic and religious aspect of wilful murder and kin-slaying—crimes which
involved the penalty of death or the confiscation of property—we may
feel certain that the State courts had exclusive jurisdiction in such
cases.[36] But we cannot be sure that the same principle applied to
manslaughter and minor degrees of guilt, except when such deeds occurred
between parties who had only one civic bond between them, namely, the
political union of the State. Most frequently, we admit, the parties
involved would be of such a kind. The rise of political democracy and
of a new nobility of wealth led to the accumulation, in the cities of
Attica, of a vast multitude of persons who did not belong to any of the
old tribes or religious corporations.[37] The common worship of the
clan, the phratry and the tribe did not receive their allegiance. Hence,
probably, the courts of such organisations would not, even if they could,
adjudicate in their case. But there survived in Attica, all through the
historical era, families who still belonged to these more primitive
groups. They were the old nobility, the country gentry, scattered over
rural Attica,[38] who continued to obey and, where possible, to exercise
the old jurisdictions of the clan, the phratry, and the tribe. We have
shown that local tribal courts still functioned, with State-sanction,
in historical Attica.[39] We have quoted a passage[40] from Plato which
suggests that some such local courts had power to condemn to death a
person who maliciously wounded one of his parents.

We agree with Müller[41] and Coulanges,[42] in opposition to Glotz[43]
and Philippi,[44] in the view that Plato’s _Laws_ are based, in the
main, upon the Attic legal codes. There are certain points in which
Platonic law seems independent of Attic law. Are these variations to be
attributed to the fancy of an idealist or are they rather a supplement,
an incorporation of local and tribal laws which the State codes did not
mention but always presupposed? So far as homicide at least is concerned,
we prefer the second alternative: and we shall give at a later stage the
reasons for our preference.

In describing the trial of inanimate objects and of animals which were
guilty of human bloodshed, Plato says[45]: ‘If a beast of burden or any
other animal shall kill any person (except in a public contest) let the
relatives (of the deceased) prosecute the cause of death: and let the
wardens of rural areas (ἀγρόνομοι) upon whom ... the relatives shall
impose this task, decide upon the matter: and let them destroy the
animal (if) condemned and cast it beyond the boundaries (of the State).
If any inanimate object deprives a person of life (except lightning or
such god-sent bolt ...) either by the person falling upon it or by its
falling upon the person, let the nearest of kin appoint the nearest
neighbour to act as judge, and (thus) free from pollution himself and
his whole kindred, and cast the condemned object beyond the boundaries.’
There is no mention of the Prytaneum Court or of the Tribe-Kings. We
can explain the omission by supposing that Plato is referring to local
courts and local cases of bloodshed, in which the relatives had not to
go outside their immediate neighbourhood to obtain jurisdiction. The
ancient phratry was an assembly of local clans: neighbourhood was the
essential factor in the bond which the phratry religion represented. The
‘nearest neighbour’ in this quotation would have been a member of the
phratry, if not of the clan, to which the slain person belonged. The duty
of prosecution which is here referred to was no sham duty[46]; it was a
serious religious obligation. Failure to prosecute would have ‘polluted’
the relatives of the slain.

So far there is no question of any human guilt. But such a question
might have easily arisen. In the Hebrew murder-code,[47] if an ox gored
a man to death, it was necessary to inquire whether the ox had been
‘let out’ by the owner, and whether the ox was previously ‘known to be
dangerous.’ If so, the owner could have been put to death, unless he
ransomed his life. Let us suppose, furthermore, that the object had not
‘fallen,’ but was such that it must have been ‘thrown.’ Two cases might
now arise: (1) the ‘thrower’ might confess that he threw the object,
say, a stone or a piece of wood, but at the same time deny that he threw
it with the intention of hitting, much less, of killing, any person: or
(2) the ‘thrower,’ guilty of intent to kill, might escape undetected,
perhaps concealed by a wall or a boulder or a shrubbery, from which he
had hurled the fatal missile. Thus, the trial of inanimate objects, and
also, but to a less extent, the trial of animals, might have had a close
connexion on the one hand with the question of accidental homicide,
committed by a human agent, and on the other with the question of ‘murder
by persons unknown.’ Upon the precise circumstances of each case would
have depended the question whether local magistrates and tribunals
would have possessed jurisdiction in the matter, or whether it would
have had to be referred to the central State authority at Athens. But to
this same authority would naturally also have fallen the decision as to
the guilt of animals or objects which had caused the loss of human life
within the city of Athens and its environs: and hence we can understand
why the central Prytaneum court had to adjudicate not only upon guilty
animals and inanimate objects, but also, and with much more serious
possibilities, upon murder by persons unknown.

In the case of objects which could only have proved fatal if they were
thrown by a human agent, a verdict of acquittal, in regard to such
objects, would have logically involved a verdict of murder by persons
unknown; for, if we suppose that the object was accidentally thrown, it
is probable that the thrower would have come forward and established
the blood-guilt of the object concurrently with his own innocence.
Demosthenes[48] says in regard to the Prytaneum court: ‘If a stone or
piece of wood or iron or anything of the kind falls upon and strikes a
man and we are ignorant who it was that threw it, but know and have in
our possession the instrument of death, proceedings are taken against
such instruments here.’ Plato asserts that the objects mentioned were
prosecuted by the relatives of the slain: but may we not also assume
that a man who had thrown one of these objects without malicious intent,
and who was accused of murder or manslaughter, would have lodged an
accusation against the ‘object’ at the preliminary inquiry[49] before the
King-Archon, that is, at the Prytaneum? If the Prytaneum found the object
guilty, would not the verdict have prohibited any further proceedings?
If, on the other hand, the object was clearly hurled by a human agent
with malicious intent, and if the agent was unknown, proceedings, of a
most formal kind, were taken against the unknown slayer.

Similar proceedings would of course be taken if there was no ‘object’
involved, as, for instance, in case of death by strangling. Such
proceedings are thus described by Plato[50]: ‘If anyone,’ he says, ‘is
found dead and the murderer is not known, and is not discovered by
careful search-parties, let there be proclamation against the murderer
as in other cases, and let the heir-at-law (_i.e._ the nearest relative
of the deceased) proclaim in the market-place that the murderer, whoever
he is, must not, since he is guilty of bloodshed, set foot in any sacred
place in his native State or in that of his victim, or if he does, and
he is discovered and identified, he shall be put to death and cast
unburied beyond the boundaries.’ We have already pointed out[51] that
the object and purpose of trials for homicide in Greece was not so much
the establishment of guilt, as it is in modern States, but rather the
establishment of innocence. Now, our last quotation from Plato suggests
that a man who came to be suspected of homicide some time after the crime
was committed, and who was never formally prosecuted and convicted,
could, nevertheless, be put to death! But we shall see[52] that one
refuge still remained to the ‘unfortunate wretch.’ He could have pleaded
innocence, in the presence of the avengers, and this plea compelled _ipso
facto_ a recourse to trial: he could of course be arrested on the spot
and imprisoned, but he could challenge a verdict at a court of summary
jurisdiction, the prison court, known as ‘the Eleven,’[53] and if he
proved his innocence to the satisfaction of more than four-fifths of his
judges, his accuser paid a fine of one thousand drachmae! Thus, he could
not be slain on the spot by the avengers if he pleaded innocence: but
unless he proved that he was innocent he was ultimately put to death.

Aristotle may be taken to suggest that there was no essential connexion
between the trial of inanimate objects and the verdict of murder
against a person unknown. He says[54]: ‘if the name of the homicide
is unknown, the indictment is prosecuted in general terms against the
unknown author’; but in the next line he adds: ‘The King-Archon and the
Tribe-Kings have competence in indictments against lifeless objects and
the brute creation.’ The juxtaposition of such references is sufficiently
significant. Pollux[55] is more definite: ‘The Prytaneum court,’ he says,
‘adjudicates concerning slayers if they are unknown, and also concerning
lifeless objects that have fallen and caused death.’

Though none of these authorities say anything to support, neither do
they say anything which refutes, our opinion that the Prytaneum court
could also try cases of ‘accidental’ slaying in which a person accused
of manslaughter pleaded an entire absence of neglect[56] or passion
or intent. Our view is however rendered probable by the fact that
preliminary inquiries in homicide cases were made in this place which,
in addition to being a court, was also the official residence of the
King-Archon and of the Prytaneis[57]; but the most cogent argument in
favour of our hypothesis is to be found in the first two lines of the
Draconian inscription if our interpretation of these lines is correct.
We fail to see how the Draconian reference to ‘kings’ as ‘the judges’
in cases of homicide committed ‘without intent’[58] can be otherwise
satisfactorily explained.

If it be objected that pleas of ‘accidental’ homicide were regularly
tried at the Palladium court,[59] we may reply that the proper function
of this court was subsidiary or supplemental to that of the Prytaneum.
In the Palladium the accused in his plea denied, indeed, any guilt,
but he would have found it difficult to prove his innocence unless
he could transfer the guilt to another person. In the Prytaneum, as
we conceive it, he had often an opportunity of laying the blame upon
an inanimate instrument of death. Such a plea of accidental slaying
involved no question of human guilt, as the accusation was centred upon
an inanimate ‘object.’ Again, whenever the plea of the accused differed
from the charge of the accuser, it was the duty of the King-Archon to
decide on the probabilities of the case, before he relegated the trial
to its appropriate court.[60] If, then, a person accused of murder or
manslaughter could advance a plea of accidental homicide by accusing an
inanimate object, the Prytaneum court adjoining the official residence of
the King and the Prytaneis would have been at the immediate disposal of
the defendant. No long period of time, such as ordinarily had to elapse
between formal accusations and homicide trials, preceded the trials at
the Prytaneum; and we may infer from Plato’s account that the verdict
of ‘death by persons unknown’ was normally brought in by the Prytaneum
court before any formal proclamation of the unknown murderer was made by
the relatives of the slain.


INVOLUNTARY HOMICIDE

In regard to pleas and charges of manslaughter, we hope to show that
there is a very substantial agreement amongst the ancient authorities.
Once more[61] we must call attention to the possibility of local as
distinct from central jurisdiction. Demosthenes[62] quotes a law of
Dracon relating to the ‘appeasement’ of the relatives of the slain,
which is practically identical with the law which we have quoted from
the restored inscription. ‘Proclamation to (or against) the slayer shall
be made in the market-place (by all relatives of deceased) within the
degrees of cousinship and by cousins; in the prosecution there shall act
jointly with these, the sons of cousins, the sons-in-law (γαμβρούς) and
the fathers-in-law (πενθερούς), the cousins-in-law, the sons of such
cousins and the phrateres. If “appeasement” is prescribed (δέῃ), if
there is a father or (and) brother(s) or (and) sons, let all (these) be
appeased or let one objector hold the field: if there are none of these,
and (the accused) slays involuntarily, and the Fifty-one, the Ephetae,
decide that he slew involuntarily, let ten phrateres decide about
appeasement, if (all) consent. These let the Fifty-one choose according
to birth (or merit).’ We give below[63] the Greek version of the latter
portion of the law, so that it may be the more easily compared with the
corresponding portion of the Draconian inscription. In this inscription,
there are two lines which are not found in Demosthenes, namely those
which refer to the rôle of the ‘cousins’ in accepting ‘appeasement.’ We
must not, however, conclude that the cousins had ceased to have a voice
in ‘appeasement’ in the time of Demosthenes, or from the year 403/2
B.C. onwards, or in Solon’s time. We are convinced that the omission is
due either to the negligence of a scribe or to the deliberate excision
by Demosthenes of unnecessary elements of law in a legal quotation
which included extracts from different laws, most of which are only
remotely relevant to his main purpose in the speech. It would be absurd
to suppose that a legal innovator jumped from the ‘small family’ to the
neighbour-brethren (phrateres) and ignored the cousins in an enactment
involving the transfer of property which constituted ‘appeasement.’
Surely if any change were made in the personnel of the recipients, the
‘neighbours’ would have been first omitted. And we cannot suppose that
cousins had become obsolete since Dracon’s time!

The formal proclamation of a charge of manslaughter against the
accused was the initial act of the ‘prosecution’ which, after a
period of inquiry, after examination of witnesses, and after various
other formalities, ultimately culminated in the formal trial of the
accused at the Palladium court. But, as it stands, this quotation from
Demosthenes suggests, _prima facie_, that trial could be dispensed with
if the deceased had near relations who unanimously consented to accept
‘appeasement’: and that it was only in the absence of relatives that a
trial took place, after which the phrateres, who were merely neighbours,
negotiated the appeasement. But this _prima facie_ inference arises from
the clumsy and unscientific wording of the law. That the inference is
logically invalid is obvious from the simple fact that, in the absence of
relatives of the deceased, the slayer could not be tried at all! When the
law says ‘if there are none of these,’ it must be taken to mean ‘if none
of the groups which are privileged to decide about appeasement can be
brought to unanimity.’

It is an extraordinary thing, that in this Demosthenic citation of the
law relating to manslaughter there is no _certain_ reference to the
penalty of exile. Are we to assume that such a penalty was not legally
compulsory, that it was merely a fortuitous eventuality which depended
entirely on the attitude of the relatives to ‘appeasement’? Are we to
suppose that if all the relatives concerned agreed to be ‘appeased’
immediately after the trial and the verdict, the manslayer could have
remained at home precisely as in the old wergeld days? We have no doubt
that so far as the relatives of the slain were concerned, he could have
remained at home. But could he have been admitted to purgation? Was he
not ‘polluted’ if the dying man did not ‘release’ him? Could he have
ignored the anger of the gods and of the slain? The laws of Dracon do
not directly assist us in answering these questions: on the contrary, by
their obscure wording they suggest frequently the wrong answer. But we
have seen[64] that these laws can only be explained as a ‘compromise.’
In the wergeld system of tribal Greek societies in pre-historic days,
there was a regular and scientific method of ‘appeasement’ which, in most
kinds of homicide, was recognised as a solvent of the feud. But in the
Draconian code ‘appeasement’ appears in a degenerate and insignificant
aspect. It is subordinated to other penalties which are not stated with
any degree of emphasis, for the simple reason that they were universally
familiar. All the arguments which we have put forward in support of our
theory of a ‘compromise’ in Attic law compel us to assume that exile
was an essential ingredient of the penalty for manslaughter. Such an
assumption is implied in the reading ἐσέσθων (let them permit to return)
occurring in the Draconian inscription. Demosthenes, unfortunately, has
αἰδεσάσθων, which refers merely to ‘appeasement.’ As we should have
expected, Glotz[65] and Müller[66] interpret this Demosthenic reference
as if it were a logical scientific document: and they accept the _prima
facie_ inference that a person accused of manslaughter could, as soon
as he was publicly proclaimed and banned from all public and religious
intercourse, avoid the ordeal of a trial and the punishment of exile by
simply taking some money with him to the house of the father, brother
and sons of deceased; if he succeeded in securing a ‘settlement’ and
procured a ‘legal release,’ he could have quietly resumed his ordinary
occupations! This interpretation, which we have already rejected,[67]
is inconsistent with other passages in Demosthenes and in Plato which
we shall now discuss. While we admit that this law of Dracon does not,
unfortunately, mention the exile penalty for manslaughter as an obvious
and incontrovertible fact, yet we insist that it does mention trial as
a normal concomitant. The Ephetae are there, first and last. The Ephetae
must decide the degree of guilt: they must decide that the slayer slew
involuntarily: they must in the absence of relatives or in the event of
their disagreement select the ‘phrateres’ according to birth or merit.
This at least is very different from ‘private settlement.’

Demosthenes[68] quotes another law of Dracon regarding manslaughter, as
follows: ‘If anyone shall pursue or plunder beyond the civic boundary
any of those slayers who have gone into exile and whose property is
not confiscate to the State, he shall incur the same penalty as if he
did so inside our boundaries’ (ἐν τῇ ἡμεδαπῇ). Fortunately we possess
Demosthenes’ explanation of this law which, because of its peculiar
expression, requires some such explanation. The word ἐπίτιμα, in
reference to property, is opposed to ἄτιμα and means ‘not confiscated.’
Hence, the phrase ‘Slayers whose property is not confiscated’ must refer,
says the orator, to ‘involuntary slayers,’ because the property of wilful
murderers is confiscated to the State. Thus this Draconian law, instead
of employing the adjective ‘involuntary’ (ἀκούσιος) as a predicate
of ‘slayers,’ uses two clauses to describe what a single adjective
would have described. Are these two clauses, then, to be regarded as
definitive; as concerned with qualities which normally and universally
characterised involuntary slayers? Are involuntary homicides, as a class,
defined as ‘those manslayers who have gone into exile and whose property
is State-guaranteed’ (ἐπίτιμα)? Or are we rather to suppose that there
were two classes of involuntary homicides, and that this law refers
to only one of these classes—that in some cases, as Glotz and Müller
conceive the matter, the slayer bribed the relatives of the slain, and
avoided all further trouble; and, in other cases, he went into exile? In
our opinion this quotation suggests that all involuntary slayers went
into exile for a period of time. Müller holds[69] that the duration of
this period of exile was not fixed by any law: that the slayer remained
in exile until such time as the relatives accepted ‘appeasement.’ We
shall discuss this opinion more fully later, but we may say here that it
seems very strange that the State should have guaranteed protection for
the property of the slayer, and should, at the same time, have had no
voice in determining the limits of his period of exile, no influence in
constraining the relatives of the slain to accept ‘appeasement.’

Speaking of involuntary homicide, in another passage, Demosthenes
says[70]: ‘If the accused be convicted and be found to have done the
deed, neither the prosecutor nor anyone else has control over him, but
the law alone. And what does the law command? That a person convicted of
involuntary homicide shall on certain stated days leave the country by an
appointed road and remain in exile until he has appeased certain[71] of
the relatives of the slain (τινα τῶν ἐν γένει τοῦ πεπονθότος): then it
permits him to return, not anyhow, but in a particular manner, ordering
him to sacrifice and be “purged” and giving other directions which he
must carry out. Rightly, men of Athens, does the law prescribe all
this. It is just to make the penalty of involuntary homicide less than
voluntary, and it is right to prescribe exile guaranteeing (a person)
a secure exodus, and for the returning exile to free himself from tabu
and be cleansed by customary rites; above all it is right that the laws
should control everybody and everything.’ In this passage we find the
usual obscurity of language and even apparent discrepancies.

Is it suggested that if the manslayer is not accused and convicted,
the law has no control over him? Glotz and Müller would find in
such quotations a proof of their theory of the legality of ‘private
settlement.’ But it is absurd to examine as it were microscopically such
passages as this. They must be interpreted, as far as possible, in the
light of other parallel references, and accepted or rejected according
to the criterion of consistency. We admit of course that Demosthenes is
not always consistent; he was essentially an orator, and as an orator
he placed rhetoric before logic, persuasion before truth. But in legal
quotations he had to respect the legal knowledge of his audience. Hence
such quotations contain of necessity an important element of truth. In
the passage which we have just cited there is an apparent discrepancy
which militates somewhat against its logical value. We may ask: ‘How can
the law be said to be master of everybody and everything if it guarantees
to the relatives of the slain the right to refuse “appeasement,” even if
there be only one dissentient?’ A law of Dracon prescribed that ‘all must
agree or let one objector hold the field.’ Was not this objector, then,
κύριος τοῦ ἀνδροφόνου? What control had the law over such an objector?
On the very face of it, therefore, this statement of Demosthenes seems
inconsistent with itself! But perhaps Plato will help us to solve the
problem.

We have already[72] quoted Plato’s account of the penalty for
manslaughter. The legend, which he mentions, ‘of priests of old’
concerning the temporary anger of the dead shows the religious
significance which the exile penalty possessed for Plato: he understood
the meaning of the ‘customary rites’ of cleansing and purgation
which the manslayer had to perform on his return. In his penal
code, Plato differentiates between different degrees of guilt in
involuntary homicide: and it is significant that the penalties vary
correspondingly—not in the extent of the ‘appeasement,’ but in the
duration of the period of exile. Thus he says[73]: ‘If anyone kills a
freeman in a passion, let him be of necessity an exile for two years.’
In this case there is an element of guilt, but there is no deliberation
or intent to kill. He goes on to say: ‘He who in a passion but with a
certain degree of intent (μετ’ ἐπιβουλῆς) slays a person, ... let him
be an exile for three years ... being punished during a longer period
because of the greater seriousness of his passion.’ ‘It is difficult,’
he continues, ‘to give laws on such matters with accuracy. Of all such
matters, therefore, it is right for the guardians of the laws to have
cognisance: and when the period of the exile shall have expired for each
offender, it is right to send twelve judges to the civic boundaries
who having considered still more clearly meanwhile the condition (or
conduct—πραξεῖς) of the exiles, will be the final arbiters (δικαστάς) of
the “appeasement” and their return home from exile: and let them abide
by the decisions of these magistrates; and if, after returning from
exile, anyone of these commits again the same offence, let him be exiled
and never return: if he returns let him suffer in the same way as if
a stranger returns’ (κατὰ τὴν τοῦ ξένου ἄφιξιν). Here we have a very
different picture from that which the theories of Glotz and Müller and
some Demosthenic passages suggest. There is question of manslaughter, but
there is no reference to the power of wrangling relatives to prevent the
exile’s return. On the contrary, it is stated that the ‘appeasement’ was
controlled by judges who may have been _phrateres_, but were probably not
kinsmen of the slayer. The last line in the passage refers to a law which
we have already[74] mentioned, namely that which decreed perpetual exile
for manslaughter committed between strangers in any given State. The
penalty for ‘returning’ in such a case, that is, for _rupture de ban_,
was death.

In a passage which refers to a case of kin-slaying, in which the dying
man ‘forgave’ his slayer (without, however, granting a ‘release’), Plato
says[75]: ‘If any person of his own accord absolves anyone for such a
deed, let the purgations be made for the slayer as if his act had been
involuntary, and let one year be the term of his absence from the country
according to law.’ The theory of the legality of ‘private settlement,’
before or after trial, cannot be reconciled with this quotation. The
phrase ‘according to law’ suggests that Plato refers to actual Attic law,
and not to an ideal law of his own creation.

Plato adds that in such a case the slayer can never resume his ordinary
domestic life, even though he recovers his civic status. Similarly, for
the slaying in a passion of a husband by his wife, or of a wife by her
husband, the penalty prescribed is three years’ exile, but such persons,
even though not akin in blood, cannot return home to share in common
domestic rites with their children, or to eat at the same table. In this
law we see clearly the operation of a local or domestic ‘pollution’ which
debars the slayer from his family hearth, and which is quite distinct
from the civic pollution which debars him from certain definite States.
It is important to observe that with the local or domestic pollution no
civic or international law has ever interfered; whereas civic pollution
has been regulated by law according to the varying degrees of guilt, and
the claims of the relatives to ‘appeasement.’

Plato implies that one year was the normal period of exile for
manslaughter. The Greek verbs ἀπενιαυτίζειν[76] and ἀπενιαυτεῖν convey
the same implication. Can this fact be reconciled with the law of Dracon?
We believe that it can, but only by distinguishing between theory and
practice, between local and central courts, between local and central
religion.

Plato shows how local judges would have solved the difficulty caused by
recalcitrant relatives. We have seen[77] that Plato decrees perpetual
exile for manslaughter between strangers. But exile from what State?
Surely it was only from the State in which the deed took place: and the
reason for this penalty was probably the fact that the relatives of the
slain did not live in the State where the deed took place: and hence no
‘appeasement’ of these relatives could formally admit him to that State,
though he could be admitted through ‘appeasement’ to his native State,
if the slayer and the slain were both citizens of the same State. Thus
the tendency of the pollution doctrine, apart from the claims of the
relatives of the slain, was to exact perpetual exile for manslaughter.
Plato decrees that any citizen had the right to prosecute a stranger for
manslaughter, but not that he had a right to accept ‘appeasement.’[78]
Hence, by a strange paradox, the relatives of the slain provided a medium
by which the man-slayer regained his civic status. Yet, in the case of
involuntary kin-slaying, the slayer could never re-enter his home! We
believe that these decrees are not Platonic creations, but were found
in Attic law, written or unwritten. Can they be reconciled and made
intelligible?

We saw[79] that wergeld was not admissible for kin-slaying in the
Pelasgian tribal system. Outside the kindred, however, wergeld permitted
the slayer to remain at home or to return after a time, if he could not
pay the full _were_. A comparison of such customs with the historical
homicide code suggests quite obviously a compromise, in which the
seventh-century pollution-doctrine failed to impose its will on the
relatives of the victim because of a real or presumed ‘forgiveness’ on
the part of the slain. Without the anger of the dead, the pollution
doctrine could not operate.[80] Apollo himself could not enforce it.
The relatives of the slain had a just claim to be regarded as the best
interpreters of the anger of the dead. It was in this crevice, so to
speak, in the doctrine of pollution that the kindred of the slain drove
the thin end of their old tribal wedge. They claimed the right to
determine the period of exile for manslaughter, but for manslaughter
only: for in such cases the anger of the dead could not be regarded as
perpetually implacable. In theory, then, these relatives had the right
to consent to ‘appeasement’ at any time; but in deference to the dead
their consent could not become effective before a year had passed. They
could in theory delay their consent indefinitely, but delay was less
probable in local than in central jurisdiction. They were compelled by
law to prosecute the manslayer in court if the slayer denied his guilt;
but if he admitted guilt, no trial was necessary; and it was only in such
a contingency that ‘appeasement’ could occur without trial: nevertheless
a year’s exile was still necessary before the relatives could accept
‘appeasement’ and finally remove the barriers to ‘purgation.’ The
fact that the involuntary kin-slayer could never re-enter his home we
attribute to the tradition of Pelasgian domestic religion.[81] This
solution reconciles, we think, the law of Dracon, the code of Plato, and
most of Demosthenes’ references. It is also in harmony with our general
theory[82] of the compromise between ‘pollution,’ tribal wergeld, and
State law, which is expressed in the murder-code of historical Greece.


JUSTIFIABLE AND JUSTIFIABLY ACCIDENTAL HOMICIDE

In our analysis of the Attic laws concerning justifiable homicide, we
will begin by drawing a distinction between three possible contingencies.
First of all, we can conceive that blood has been shed without any
intent to kill, but with a certain element of neglect (ἀφυλαξία), which
has however been expressly mentioned and declared to be justifiable in
law. Secondly, we may suppose that there was a certain degree of intent
to kill and a certain amount of deliberation, but also that there was
an extenuating element of impulse or passion which has been decreed
guiltless, in certain circumstances, by the law. Thirdly, we may suppose
that the person slain was an outlaw or a State-criminal, whose life was
forfeit by the laws of the land, and whose citizen-slayer was declared to
be justified in advance.

Homicide of the first class has so much in common with ordinary
accidental homicide that we think it probable that they were often
confused in Greek thought, if not in law. The words ἄκων and ἀκούσιος
which, we have seen,[83] were applied indiscriminately to denote cases
of different degrees of guilt in accidental slaying and in manslaughter,
were also used to denote such forms of accidental slaying as were
expressly ‘justified’ by law. Perhaps this confusion may help to explain
still further the apparent discrepancies in Demosthenic references
to ‘release’ and ‘private settlement.’ For the case which we are now
discussing, there was no penalty, no exile, or loss of property, not
even a fine. Pleas of justifiably accidental homicide were doubtless
frequently made in answer to charges of manslaughter or of wilful murder.
The King-Archon (and perhaps also the Tribe Kings) had to decide between
the merits of the ‘charge’ and of the ‘plea.’ Obviously, it was always
as a result of a ‘plea,’ never as a result of a ‘charge,’ that homicide
cases were referred to the Delphinium court.

Justifiable homicide of the second class has close affinities with
extenuated manslaughter, or slaying in a passion. The essential
difference lies in an express legal justification in one case, and the
absence of such a justification in the other. When we come to analyse
the Oresteian legends of Attic tragedy we shall find[84] that the
close affinity which exists between these two legal conceptions caused
considerable confusion in the legends—caused Orestes to be immune from
punishment, from one standpoint, but liable to a period of exile, from
another. The oracle of Apollo, which commanded him to slay his mother,
should naturally have been accepted as a complete justification. Some
legends took this view.[85] But such a contingency was not expressly
mentioned in the Attic laws concerning justifiable homicide. Plato
assures us[86] that under no circumstances, not even in self-defence,
was it lawful to slay a parent. Hence it became necessary to regard
Apollo as the divinely immune cause of guilt; and Orestes, as his
blind, obedient instrument, became liable to a merely nominal charge of
manslaughter or extenuated matricide! His mother was almost compelled
to ‘forgive’ the deed! In one legend[87] Apollo commanded the Erinnyes
to withdraw from pursuit, and drove them from his temple; in another he
decreed that they should pursue Orestes for a year![88]

Our third classification includes cases in which only two issues could be
raised—namely, lawful homicide or wilful murder. From this point of view
the act of Orestes could also be discussed, and an Athenian court could
find it interesting to discuss and difficult to decide at what precise
time in the post-Homeric social evolution did private vengeance become
illegal! The trial of Orestes at Argos, which Euripides describes in the
_Orestes_, seems to depend upon this legal difficulty.[89]

We will now illustrate these cases by relevant quotations.

Aristotle’s[90] account is a mere extract, or rather a kind of summary:
‘Homicide,’ he says, ‘admitted and alleged to be lawful, as of an
adulterer caught in the act, or of a friend mistaken for an enemy in war,
or of an antagonist in an athletic contest, is tried in the Delphinium.’
The first clause has been included in our second classification, the
rest of the cases belong to our first category. Demosthenes quotes[91]
the Draconian laws, and his account is almost identical with that which
Plato[92] gives. To facilitate comparison, we will quote both accounts
together in parallel columns:

                             _Demosthenes_

    If any person shall kill another accidentally in a contest or
    in an ambush or in a battle by mistake or having caught him
    (in adultery) with his wife or with his mother, or sister, or
    daughter, or a concubine kept to beget free children, he shall
    not be put on trial (_or_ he shall not be exiled) (φεύγειν)
    for such homicide: and if anyone resisting unlawful seizure
    or violence shall immediately kill the aggressor his death
    shall not be punishable,[93] and it shall be lawful to kill
    murderers (found after conviction) in our territory, but not
    to illtreat or amerce them, under pain of paying[94] double
    damage inflicted: no person shall be liable to any legal
    proceedings for homicide who gives information against (and
    therefore causes the death of) exiles who return when it is not
    lawful.[95]

                                _Plato_

    If any person shall kill a citizen accidentally in a contest at
    public games ... or during a war or the practice of military
    exercises ... let him be purified according to the law brought
    from Delphi about these matters, and be immune from punishment:
    and, regarding physicians, should any person who is attended
    by them die without their intending it, let such physicians
    be immune by law.[96] If anyone catches a thief entering his
    house by night, with intent to steal ... and kills him, let him
    be immune. If anyone commits rape ... let him be slain with
    impunity: if a man finds his wife being ravished and kills
    the offender, let him be immune by law. If anyone shall kill
    a person, warding off unjust death from his father, mother,
    children or brothers ... let him be immune.[97] If any such
    persons (wilful murderers) set foot upon the civic territory
    of the slain, let him who first meets him ... kill him with
    impunity.[97]

We have elsewhere[98] cited a Delphic law which concerned justifiable
slaying, and which, in its completeness, we regard as the common parent
of both these legislations. These excerpts are strikingly similar,
especially if we remember that they are a number of extracts which we
have put together with the object of eliciting a complete list of cases.
No better proof than this could be adduced of the ‘historicity’ of
Platonic legislation[99] regarding homicide. Antiphon[100] refers to the
legal immunity of physicians, and we may therefore consider this Platonic
law to be also Draconian (or Solonian).[101]

To both the above quotations our triple classification of cases of
justifiable homicide can without difficulty be applied. Confining our
attention to the Demosthenic account, we may point out that the reference
to accidental slaying in a contest, ambush, or battle, is covered by
our first category: the infliction of death for adultery or seduction is
included in our second category: and the slaying of unjust aggressors,
and of murderers _en rupture de ban_, in our third category.

In regard to adultery, we have already[102] suggested that the right
to kill _in flagrante delicto_ must not be regarded as a relic of a
primeval custom which decreed the death penalty for adulterers in
all circumstances. The Gortyn laws and the Homeric customs which are
denoted by the word μοιχάγρια support our view that the right to kill
_in flagrante delicto_ was an innovation of the period of synoekism
and of centralised government. Philippi[103] thinks that there is a
strong probability of correctness in Pausanias’ view[104] that the age
of Theseus represents the point at which the distinction of justifiable
homicide could be applied in such matters. But our reading of Pausanias
suggests that in his view the distinction was first applied to adultery
in the time of Dracon.[105] We believe the distinction, thus applied,
was as late as the seventh century, and we agree with Pausanias that the
penalty thus decreed was severe.


WILFUL MURDER

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.


PRIVATE SETTLEMENT FOR WILFUL MURDER

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.


REFUSAL OF BURIAL TO EXECUTED MURDERERS

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.


PLOTTING AND CONTRIVING MURDER

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]


STATE EXECUTION OF DEATH PENALTY

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.


PARRICIDE AND KIN-SLAYING

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]:

    Stern upon mortals the vengeance falleth
    For kin’s blood spilt: from the earth it calleth,
    A voice from the gods, and the slayers appalleth,
          On whose homes it shall light.

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,

    Ὀρφεὺς μὲν γὰρ τελετὰς θ’ ἡμῖν κατέδειξε φόνων τ’ ἀπέχεσθαι:

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:

    silvestres homines sacer interpresque deorum
    caedibus et victu foedo deterruit Orpheus.

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.’


FOOTNOTES

[1] _Das attische Recht_, vol. i. p. 17.

[2] _Op. cit._ p. 377; Arist. _Ath. Pol._ 35.

[3] Pollux, viii. 125; Plutarch, _Solon_, 19.

[4] _Infra_, p. 269 ff.

[5] _Supra_, p. 180.

[6] Aristotle, _Ath. Pol._ 7.

[7] _Supra_, p. 143.

[8] Dareste-Hassouillier-Reinach, _I.J.G._ No. xxi. ll. 10-19 (vol. i. p.
3 ff.); see also Hicks and Hill, _Gk. Hist. Inscript._ p. 113; Philippi,
_Areopag._, p. 335.

[9] Philippi, _Areopag._, pp. 335-337, proposes to restore the end of
l. 12 as follows: ἢ βουλεύσεως τὸν ἀεὶ βασιλεύσαντα. For ἐσέσθων (l.
18), Demosthenes gives αἰδεσάσθων, _c. Macart._ 1069. The unrestored
inscription has εσεσθ... (l. 18).

[10] Andocides, _de Myst._ 94; Dem. _contra Conon_. 1264, 20.

[11] Gilbert, _G.C.A._ (Eng. trans.), p. 126; Hicks and Hill, _op. cit._
p. 114.

[12] _Ath. Pol._ 57.

[13] _C. Macart._ 1069.

[13A] ἐσέσθων from ἔσίημι.

[14] _Areop._ p. 238.

[15] ix. ch. 9; _infra_, p. 210 ff.

[16] _Tetralogies_, ii. 4, iii. 2, iii. 3.

[17] _Eum._ p. 141.

[18] _Areop._ p. 16.

[19] _Ath. Pol._ 57; _infra_, p. 250.

[20] Homer, _Il._ xviii. 500.

[21] _Op. cit._ p. 190; _supra_, p. 92.

[22] _Op. cit._ pp. 32-40, 173, 439.

[23] See _infra_, pp. 201 ff.; 256.

[24] See _infra_, p. 204.

[25] _Infra_, p. 263 ff.

[26] _Infra_, p. 268.

[27] Philippi, _Areop._ pp. 138-9.

[28] _Supra_, p. 85 f.

[29] _Supra_, p. 143 ff.

[30] _Op. cit._ pp. 311, 324.

[31] _Infra_, p. 209 f.

[32] _Supra_, p. 174 ff.

[33] But see _infra_, p. 213.

[34] P. 302; _supra_, p. 53.

[35] _Op. cit._ p. 173.

[36] See _supra_, pp. 82, 93.

[37] Coulanges, _op. cit._ pp. 169-176, 252, 360, 367, 376.

[38] _Ib._ p. 331.

[39] _Supra_, p. 88.

[40] _Supra_, p. 85.

[41] _Eum._ p. 93.

[42] _Op. cit._ p. 105.

[43] _Op. cit._ pp. 180, 234, 537, 594.

[44] _Areop._ p. 148.

[45] _Laws_, ix. ch. 12.

[46] See, _e.g._, Müller, _Eum._ p. 142, and _supra_, p. 197.

[47] _Exodus_, xxi. 28-36.

[48] _In Aristoc._ 645. _Cf._ Pausanias, i. 28, Aristotle, _Ath. Pol._ 57.

[49] ἀνάκρισις.

[50] _Laws_, ix. ch. 12.

[51] _Supra_, p. 196.

[52] _Infra_, p. 258 ff.; Arist. _Ath. Pol._ 52.

[53] οἵ ἕνδεκα.

[54] _Ath. Pol._ 57.

[55] viii. 120, also viii. 90.

[56] ἀφυλαξία.

[57] Paus. i. 3. 14; Plato, _Euthyphro_, 2; Pollux, viii. 90.

[58] μὴ ἐκ προνοίας.

[59] Aristotle, _Ath. Pol._ 57, 3.

[60] _Ib._ 57, 2.

[61] See _supra_, pp. 88, 200 ff.

[62] _C. Macart._ 1069; ἐντὸς ἀνεψιότητος is usually interpreted ‘nearer
than cousins’: we read ἀνεψιούς instead of ἀνεψιοῦ; as the word recurs,
we translate it, in the second instance, as ‘cousins-in-law’: we
interpret ἀνεψιαδούς as sons of female cousins.

[63] ἐὰν δὲ αἰδέσασθαι δέῃ, ἐὰν μὲν πατὴρ ᾗ ἢ ἀδελφὸς ἢ υἱεῖς, πάντας ἢ
τὸν κωλύοντα κρατεῖν. ἐὰν δὲ τοὺτων μηδεὶς ᾖ, κτείνῃ δ’ ἄκων, γνῶσι δ’ οἱ
πεντήκοντα καὶ εἷς ἢ οἱ ἐφέται, ἄκοντα κτεῖναι, αἰδεσάσθων οἱ πράτορες
ἐὰν θέλωσι, δέκα. τούτους δ’ οἱ πεντήκοντα καὶ εἷς ἀριστίνδην αἱρείσθων.

[64] _Supra_, p. 143 ff.

[65] _Op. cit._ pp. 314-316, p. 324.

[66] _Eum._ p. 93.

[67] _Supra_, p. 174 ff.

[68] _In Aristoc._ 634-5.

[69] See Müller, _Eum._ p. 93.

[70] _In Aristoc._ 643-4.

[71] Glotz takes this word too literally, _op. cit._ p. 311 ff.

[72] _Supra_, p. 178.

[73] _Laws_, ix. ch. 9.

[74] _Supra_, pp. 163, 173.

[75] _Laws_, ix. ch. 9.

[76] Xen. _Mem._ i. 3. 13; see Müller, _Eum._ p. 94.

[77] _Supra_, p. 163.

[78] Plato, _Laws_, ix. ch. 8.

[79] _Supra_, p. 8.

[80] _Supra_, p. 146.

[81] _Supra_, p. 108.

[82] _Supra_, p. 143 ff.

[83] _Supra_, p. 196.

[84] See _infra_, pp. 278, 295, 347.

[85] See _infra_, p. 291 ff.

[86] _Laws_, ix. ch. 9.

[87] See Aeschylus, _Eumenides_.

[88] See Euripides, _Orestes_, 1645 ff.

[89] _Infra_, p. 352.

[90] _Ath. Pol._ 57.

[91] _In Aristoc._ 629-639.

[92] _Laws_, ix. chs. 8, 12.

[93] _In Aristoc._ 639.

[94] _Ib._ 629.

[95] _Ib._ 636.

[96] Ch. 8.

[97] Ch. 12.

[98] _Supra_, p. 161.

[99] _Infra_, p. 240 ff.

[100] _Tetralogy_, i. 5.

[101] _Supra_, p. 192.

[102] _Supra_, pp. 59, 74.

[103] _Areop._ p. 5.

[104] i. 28. 10.

[105] See ix. 36. 4.

[106] Dem. _in Aristoc._ 634.

[107] Dem. _in Aristoc._ 632.

[108] _Ib._ 629.

[109] 528.

[110] _Laws_, ix. ch. 11.

[111] _In Aristoc._ 643.

[112] τὸν πρότερον ἔξεστιν εἰπόντα λόγον μεταστῆναι.

[113] viii. 117.

[114] See Dindorf _ad loc._

[115] _Infra_, p. 233 ff.

[116] _E.g._ Smith, _Dict. Gk. Ant._, _s.v._ φόνος, vol. ii. p. 385.

[117] _Supra_, p. 9 ff.

[118] P. 238; _supra_, p. 81.

[119] _Supra_, p. 7.

[120] _Supra_, pp. 93, 144.

[121] Glotz, p. 521.

[122] Dem. _in Timocr._ 702; _infra_, p. 236 ff.

[123] _De Myst._ 149-150. See also Plato, _Laws_, iv. ch. 2.

[124] P. 523 ff.

[125] _Supra_, p. 189.

[126] E.g. _in Aristoc._ 644.

[127] _Infra_, p. 225.

[128] _Against Meidias_, 528.

[129] _Ath. Pol._ 47.

[130] viii. 99.

[131] Pp. 516-539.

[132] _On the murder of Eratosthenes_, 50.

[133] _Areop._ pp. 112-125.

[134] _Att. Proc._ (1st ed.), p. 307.

[135] _Op. cit._ p. 517.

[136] P. 578.

[137] i. 2.

[138] _Op. cit._ p. 316.

[139] _Supra_, p. 175.

[140] Pp. 319 ff., 377.

[141] _Supra_, p. 173 ff.

[142] _Laws_, ix. ch. 11.

[143] _Infra_, p. 231.

[144] See _supra_, p. 106 ff.

[145] _In Timocr._ 702; _infra_, p. 232.

[146] See Smith, _Dict. Gk. Ant._ vol. ii. p. 386.

[147] 94.

[148] _In Aristoc._ 632.

[149] _Laws_, ix. ch. 11.

[150] _C. Conon._ 1264, 20.

[151] _Ath. Pol._ 39.

[152] 75, 416, 600, 770.

[153] 1294, 1300.

[154] 485.

[155] 340, 810.

[156] 280, 1020.

[157] _Supra_, p. 194.

[158] _Op. cit._ pp. 443, 612 ff.

[159] 1264 (Reiske).

[160] _Cf._ phrase κτείνων ἢ ἐπιχειρῶν in law of Solon _re_ tyrannicide,
Andoc. _de Myst._ 98.

[161] Lysias, _c. Simon._ 42.

[162] Plato, _Laws_, ix. ch. 14; Andocides, _de Myst._ 94.

[163] Plato, _Laws_, ix. ch. 13; Dem. _c. Conon._ 1262.

[164] _Gk. Const. Ant._ p. 380.

[165] P. 308.

[166] P. 307.

[167] Pp. 308-309.

[168] P. 306.

[169] P. 312.

[170] _Supra_, p. 214.

[171] Pp. 317, 322.

[172] _Supra_, pp. 60, 76.

[173] _Ancient Law_, p. 217; _supra_, p. 82.

[174] Thuc. i. 2.

[175] See, e.g., _Joshua_, xx. 1-9.

[176] See _infra_, p. 406.

[177] See _infra_, p. 411.

[178] _Andromache_, 1095-1200.

[179] _Supra_, p. 143 ff.

[180] _Infra_, p. 263 ff.

[181] _C. Agorat._ 135, 56.

[182] λαβόντες ἐν δικαστηρίῳ ὡς ἀνδροφόνον ὄντα.

[183] _Laws_, ix. ch. 11.

[184] _Ib._ ch. 12.

[185] Παραπρεσβ. 181-2.

[186] P. 309.

[187] _In Timocr._ 702.

[188] _Infra_, p. 260.

[189] P. 438.

[190] _In Aristoc._ 642. 25-643.

[191] _In Aristoc._ 643.

[192] _Ib._ 632, 20.

[193] _Orestes_, 497 ff.; _supra_, p. 62.

[194] _Supra_, p. 181.

[195] _Op. cit._ p. 321.

[196] _Ib._ p. 322.

[197] _Ib._ p. 235.

[198] _Supra_, p. 174 ff.

[199] _Laws_, ix. ch. 12.

[200] _Ib._ ch. 9.

[201] _Op. cit._ p. 323.

[202] See Art. in Daremberg and Saglio, p. 441.

[203] Dem. _in Androtion._ 593; _in Timoc._ 702.

[204] _Op. cit._ p. 442; Cic. _pro Roscio Amico_, xxv. 70.

[205] i. 26.

[206] ii. 41.

[207] Livy, iii. 48.

[208] Glotz, _op. cit._ p. 350.

[209] _Supra_, p. 84 ff.

[210] _Laws_, ix. ch. 15.

[211] _In Timoc._ 702; _in Androtion._ 593.

[212] _Laws_, ix. ch. 12.

[213] _Ib._ ch. 14.

[214] _Ib._ ch. 15; _cf._ Andocides, _de Myst._ 74: ἄτιμοι ἦσαν τὰ
σώματα, τὰ δὲ χρήματα εἶχον.

[215] _C. Theomnest._ 116, 7-8.

[216] viii. 117.

[217] _Supra_, p. 218.

[218] 4C.

[219] 2A-3E.

[220] _Supra_, p. 9.

[221] _Laws_, ix. ch. 12.

[222] 1270 (trans. A. S. Way); _cf._ 1339, also _Her. Furens_, 1280, 1325.

[223] See Eur. _Alcestis_, 534.

[224] _Orestes_, 497 ff.

[225] _C. Simon._ 42; _supra_, p. 225.

[226] _Laws_, ix. ch. 14; _cf._ Andocides, _de Myst._ 74-75.

[227] _Laws_, ix. ch. 9.

[228] _Supra_, p. 164 ff.

[229] See Glotz, _op. cit._ pp. 537, 594, and contrast p. 234.

[230] _Phaedo_, Introduction, p. xliv.

[231] P. 594.

[232] See Smith, _Dict. Gk. Ant._, _s.v._ ‘Eleusinia,’ vol. i. p. 722;
Isocrates, _Panegyr._ 42.

[233] Plato, _Phaedo_, 113E-114; _Laws_, ix. ch. 17.

[234] _Frogs_, 1032.

[235] Harrison, _Proleg._ p. 470; Pausanias, ix. 30.

[236] _Ars Poetica_, 391.

[237] _Supra_, p. 9 ff.

[238] _Supra_, pp. 3, 140.

[239] _Laws_, ix. ch. 10.

[240] _Op. cit._ ch. 17.

[241] P. 234.




CHAPTER III

ATTIC HOMICIDE-COURTS

    Attic legends concerning origin of courts for homicide: the
    accounts of Pollux, of Aristotle, of Demosthenes: question of a
    γραφὴ φόνου: Plato’s _Euthyphro_: author’s theory of the origin
    of Attic courts for homicide: Dracon and the Ephetae: Solon and
    the Areopagus: the Exegetae.


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.

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


SOLON AND THE AREOPAGUS

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

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

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

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

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

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

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

    denique sit quidvis, simplex dumtaxat et unum.


FOOTNOTES

[1] See _supra_, p. 80 ff.

[2] _Supra_, p. 81.

[3] _Supra_, pp. 93, 144.

[4] _Eum._ 688.

[5] _Op. cit._ pp. 282-3; but see Leaf, _Il._ xiv. 485 n.

[6] i. 28.

[7] _Eum._ 420.

[8] _Supra_, pp. 72, 185 f.

[9] _In Aristoc._ 641, 25.

[10] _Eum._ 685.

[11] _Ib._ 688.

[12] _Iph. Taur._ 960, 1420; _Electra_, 1260.

[13] i. 28. Pollux, viii. 119, makes Aegeus the founder.

[14] Pausanias, i. 22, 28.

[15] _Il._ ix. 632.

[16] _In Aristoc._ 644, 20.

[17] _See_ Müller, _Eum._ p. 141.

[18] viii. 119.

[19] i. 28.

[20] _Supra_, p. 215.

[21] See _infra_, p. 254.

[22] i. 24.

[23] i. 28.

[24] Glotz, _op. cit._ pp. 178-9; see also Herodotus, i. 132, 140, ii.
41-42, 54.

[25] _Supra_, p. 108.

[26] _Infra_, pp. 250, 256 f.

[27] Paus. i. 28; see Soph. _Ajax_, 1020.

[28] See Müller, _Eum._ p. 134, and Sandys’ note, Aristotle, _Ath. Pol._
p. 228.

[29] viii. 117-120.

[30] _In Aristoc._ 627, 20.

[31] _Loc. cit._

[32] i. 28.

[33] _Infra_, p. 250.

[34] viii. 121-122.

[35] i. 28; see also Aristotle, _Ath. Pol._ 63.

[36] _Ath. Pol._ 52.

[37] _In Aristoc._ 647; _infra_, p. 257 ff.

[38] Aristotle, _loc. cit._

[39] _Op. cit._ p. 14 ff.

[40] _De Herodis Caede_, 130, 139.

[41] _Ath. Pol._ 57.

[42] Poste’s translation ‘homicide by wounding’ is obviously incorrect.

[43] See also Pollux, vii. 90.

[44] _Supra_, p. 225.

[45] _Op. cit._ pp. 443, 612 ff.

[46] _C. Conon._ 1264, 20.

[47] _Supra_, p. 248.

[48] Arist. _Ath. Pol._ 25, 27.

[49] _Op. cit._ 26.

[50] _Op. cit._ 63.

[51] See Poste’s translation of _Ath. Pol._ p. 114.

[52] viii. 125.

[53] Pollux, viii. 90.

[54] _In Aristoc._ 641, 18-642.

[55] _Supra_, p. 244.

[56] _De Herodis Caede_, 130, 139.

[57] _C. Theomnest._ 117, 11.

[58] viii. 117.

[59] See Paus. i. 28 (trans. Shilleto).

[60] _De Her. Caede_, 130, 139.

[61] Dem. _op. cit._ 643, 20.

[62] _Infra_, p. 273.

[63] Pausanias, i. 28.

[64] Dem. _op. cit._ 644, 15.

[65] _Supra_, pp. 195, 215 f.

[66] _Op. cit._ p. 616 ff.

[67] Demosth. _in Aristoc._ 644, 20.

[68] Demosthenes, _loc. cit._ See also Eurip. _Orestes_, 1650.

[69] _Eum._ 490.

[70] _Laws_, ix. ch. 9.

[71] Dem. _op. cit._ 645, 15.

[72] _Supra_, p. 250.

[73] _Supra_, p. 201.

[74] Dem. _op. cit._ 645, 25-646, 15.

[75] See _supra_, p. 177 ff.

[76] _Supra_, p. 213.

[77] _Laws_, ix. ch. 8.

[78] _Op. cit._ 646, 25-647, 7.

[79] _Supra_, p. 249.

[80] _Ath. Pol._ 52.

[81] _Op. cit._ p. 428.

[82] Dem. _in Aristoc._ 629.

[83] viii. 121.

[84] viii. 40.

[85] _Areopag._, 156-7.

[86] _Op. cit._ p. 373.

[87] Art. in Daremberg and Saglio, _s.v._ φόνος, p. 440.

[88] See _supra_, pp. 147, 182, 237.

[89] Plato, _Euthyphro_, 2A, 3E.

[90] _C. Euerg. et Mnesib._ 1161; _supra_, p. 182.

[91] _In Timoc._ 702; _In Androtion._ 593; _supra_, pp. 181, 232, 236.

[92] _In Aristoc._ 646, 647.

[93] viii. 121.

[94] _Ath. Pol._ 52.

[95] _Areop._ pp. 156-7.

[96] _De Myst._ 29.

[97] _C. Andoc._ 104, 10.

[98] _Supra_, pp. 81 ff.; 91 ff.

[99] _Supra_, pp. 93 f.; 112.

[100] _G.C.A._ (Eng. trans.), p. 124.

[101] _Ib._ p. 123.

[102] viii. 125.

[103] _Areopag._, p. 139.

[104] _In Macart._ 1069.

[105] _Op. cit._ p. 124.

[106] _Eum._ p. 138.

[107] _Loc. cit._

[108] _Jahrb. f. cl. Phil._ 1875, i. 196.

[109] _Loc. cit._

[110] _Areop._ p. 213.

[111] _De Eph. Athen. nomine._

[112] _Areopag._, p. 213.

[113] _Op. cit._ p. 313.

[114] viii. 125.

[115] _Ath. Pol._ 57, ll. 30-31.

[116] _Ib._ 57, l. 24.

[117] viii. 111.

[118] viii. 125.

[119] _Op. cit._ p. 124.

[120] _Ath. Pol._ 3.

[121] _Il._ xviii. 500 ff.

[122] _Supra_, p. 192.

[123] _s.v._ ἐξηγηταί.

[124] viii. 124.

[125] viii. 111.

[126] _Theseus_, 25.

[127] _C. Andoc._ 104, 10.

[128] _Op. cit._ pp. 124, 387.

[129] _Eum._ p. 152.

[130] _Ib._ p. 148.

[131] _Supra_, p. 193.

[132] _Laws_, vi. ch. 7.

[133] _Ath. Pol._ 3.

[134] _Ib._ ch. 57.

[135] _Infra_, p. 273.

[136] _Eum._ p. 135.

[137] _Ib._ p. 153.

[138] _Op. cit._ p. 122.

[139] _Ath. Pol._ 3, 4, 8, 25, 27, 57.

[140] _Eum._ p. 137.

[141] See Gilbert, _op. cit._ pp. 123-4.

[142] viii. 125.

[143] _Solon_, 19.

[144] _Ath. Pol._ 4, 8.

[145] _Ib._ ch. 9.

[146] _Eum._ pp. 135-136.

[147] _Eum._ p. 135.

[148] _Ib._ p. 153.

[149] _Ib._ p. 135.

[150] See _supra_, p. 254.

[151] Aristotle, _Ath. Pol._ 25, 27.

[152] _In Aristoc._ 642.

[153] _Op. cit._ p. 122 ff.

[154] viii. 125.

[155] _Solon_, 19.

[156] Pollux, viii. 125.

[157] _Ars Poetica_, 23.




BOOK III

POINE IN ATTIC TRAGEDY




CHAPTER I

AESCHYLUS


The ruthless hand of callous Fortune has robbed the world and
civilisation of all save seven of the dramatic works of Aeschylus, the
first and perhaps the greatest of European tragedians. Of these seven
extant plays, there are only three which directly and formally present
any problems of blood-vengeance. These three plays are concerned with
a single theme, the murder of Agamemnon, King of Argos, by his wife
Clytaemnestra and by her paramour Aegisthus, and the subsequent vengeance
of Orestes. In the remaining plays (if one excludes the _Persians_) one
finds occasional and incidental references to bloodshed, which require
and will receive from us only a brief discussion. It is the Oresteian
‘trilogy’ which is our first and chief concern.

Horace[1] mentions the following maxim as one of the canons of ancient
dramatic art:

    aut famam sequere aut sibi convenientia finge

(‘Either follow tradition or create new themes which are congruous
and consistent’). Now these alternatives are not necessarily mutually
exclusive unless the tradition is rigidly stereotyped. A considerable
scope for inventive genius and dramatic skill was provided by such
legends as those which centred around Orestes. We are convinced that
there existed quite a number of variants in the story of Orestes.

First of all, there was the original Homeric story, to which we have
already referred.[2] In this account, Orestes slew his mother and
Aegisthus in strict accordance with the Achaean system of vendetta.
His act was not murder but just revenge. There is no suggestion of an
ancestral curse, of an indefinite series of murders continuing from
generation to generation. Blood has been shed; blood is avenged by blood.
It was the Achaean principle, whether for strangers or for kinsmen. There
is no trace of divine interference or of social justice. Apollo has no
place or part in the story: there is no trial or official execution. We
cannot discover even the element of psychological conflict. The Achaeans
were soldiers, trained in the stern school of war. Neither emotion nor
family religion stood between passion and its satisfaction.

But the legend or legends which are found in Aeschylus present very
obvious and important points of difference. Are we to suppose that
Aeschylus was not aware of any other tradition save that which Homer
gives, that all the non-Homeric elements in the Aeschylean account are
Aeschylus’ own invention, and that in this invention he was guided by
the laws and the atmosphere of his own time? This is not our view of
the matter. The Homeric legend, in our opinion, had a long and varied
career before Aeschylus was born. It came down through many centuries,
reflecting, as it came, many different atmospheres, and assimilating many
different points of view, as it took shape in various localities.

Thus there was, we maintain, an Arcadian legend which told how Orestes
came as an exile—a murder-exile—to Azania and to the town called
Oresteum,[3] and how he died there as the result of snake-bite.[4] It
is impossible to reconcile this version of the story with another which
represented him as having married Hermione[5] and as having reigned as
King of Sparta; and with another story of his reign as King of Argos.[6]

Again, we shall see that there probably was an Argive legend, which
mentioned a trial of Orestes at Argos at which he was condemned to death.
From a legal point of view, this is the most important variant of the
Homeric saga. Euripides gives it due prominence in the _Orestes_, but
Aeschylus and Sophocles ignore it altogether.

Again, in what we conceive to have been the Attic forms of the legend,
there must have been at least two variations. In our analysis of the
Attic law concerning justifiable homicide,[7] we pointed out that
at one point the conception of homicide as justifiable may be very
closely related to the conception of homicide as extenuated. The short
duration of the exile penalty in cases of manslaughter or of slaying
in a ‘passion’ when the act is ‘forgiven’ indicates a very slight
legal difference between these two standpoints. Yet they cannot of
course be regarded as identical, and they cannot even be fused or
blended without a considerable indifference to consistency. In the
transition from the Homeric age to historical times it was inevitable
that Apollo, the champion and founder of the ‘pollution’ doctrine and
of homicide-purgation rites in Greek lands, should have been drawn into
the story. He is ignored, as we shall see later, in the Argive legend of
Orestes. But he is found in all the other variants. Yet his rôle is not
simple and definite. He purges Orestes certainly: but what was the nature
of the guilt which he has purged? Was the act of Orestes justifiable or
extenuated? In Homer the act was justifiable from the Achaean standpoint;
but the legend-makers of the ‘pollution’ era could not accept that
solution. For them, the immunity of Orestes could only be explained by
the direct intervention of Apollo in advance. But this intervention was
at one stage conceived as a complete justification, at another as a mere
extenuation of the vengeance of Orestes. We shall find traces of both
these conceptions in Aeschylus. In Sophocles the conception of Orestes’
act as justifiable matricide is predominant: in Euripides it does not
appear at all. The interpretation of Orestes’ act as extenuated matricide
does indeed appear in Euripides, but it is subordinated to another
viewpoint which is quite incompatible with this—namely, the viewpoint of
the Argive legend which ignores Apollo and regards Orestes as a common
matricide who is worthy only of death.

One or two other minor variations may be traced in the Oresteian legends.
Thus we read of a sentence which is very suggestive of perpetual exile
in the _Electra_ of Euripides,[8] while in other plays there is a
reference to the penalty of exile for the duration of a single year,
a penalty which is elsewhere extended by a decree of Apollo so as to
permit Orestes to embark upon a second expedition—this time to the
Tauric Chersonese![9] Again, the story which was invented to explain the
Athenian Pitcher-Feast, and which is mentioned in the _Iphigenia Taurica_
of Euripides,[10] is quite inconsistent with the Aeschylean legends, for
in the former case Orestes was represented as ‘polluted’ when he came to
Attica, while in the latter he is said to have been already ‘purged.’

The legal aspect of the Oresteia is further complicated by what we may
term archaic assumptions. We hope to show presently that the Attic
legends of Orestes would have been legally unintelligible if the Athenian
legend-makers had not assumed that Orestes came to Athens as an exile
_after_ he had slain his mother, and not, as Homer said, _before_. Again,
if they had not assumed that the Areopagus court, which in historical
times did not normally judge cases of homicide between strangers, did
judge such cases in early times, and that its verdict of acquittal,
which was ordinarily a proof of the innocence of the accused, could
at one time have been applied to a person who admitted the fact but
pleaded justification, the legal analysis of this legend would have
been impossible. We have seen[11] that before Solon the Areopagus court
adjudicated in all kinds of homicide cases. The attribution of such
functions to the Areopagus by Attic legend is therefore an archaism,
even though it is an ‘historical’ archaism. We cannot be certain whether
the archaism was transmitted from the sixth century onwards or whether
it was ‘invented’ by later minds by a process which is described as
‘conscious archaising.’ Again, according to the legend which conceived
Orestes’ act as extenuated matricide, he had already served a period of
exile before he reached Athens. In this account, therefore, the Areopagus
merely decreed him immune from further penalties. But such a decree was
never associated with the historical Areopagus! Thus it is clear that the
Oresteian legends sometimes contain ‘unhistorical’ archaisms. We must now
consider in detail the Aeschylean presentation of the story.


THE ‘AGAMEMNON.’

The outstanding event of the _Agamemnon_ drama, the pivot upon which the
plot revolves, and the catastrophe which gives it meaning, is the brutal
murder by Clytaemnestra of her husband, Agamemnon, King of Argos, after
his triumphant return from Troy. In this play Aeschylus follows in the
main the Homeric story, but there are one or two non-Homeric features
which must be indicated.

In the gloomy chants of the Chorus, in their veiled fears of coming
danger, one finds something more than the echoes of a political
conspiracy, one finds the unmistakable influence of the creed of
the ancestral curse. Are we to suppose that Aeschylus invented this
non-Homeric doctrine which, in his own day, was a ‘creed outworn’? Such
a supposition is improbable, for we know from Stesichorus[12] that this
doctrine had already in the sixth century been incorporated in the
legend. We have already[13] attributed the _floruit_ of this doctrine
to the post-Homeric age of chaos. Such beliefs survive in dogma and in
ritual long after men have ceased to adhere to them. In Aeschylus the
ancestral curse began with the famous ‘feast of Thyestes,’ but Euripides
attributes its origin to the murder of Myrtilus.[14] The Erinnyes of the
children who were brutally slain by their kinsman Atreus continued to
pursue the children of the slayer. Hence, in this play Cassandra, the
prophetess, cries out on her arrival at Argos[15]:

    Yea! There, there, there! Here’s evidence enough!
    Smell? Nay, I see, I hear them! Little children
    Whose throats are cut, still wailing of their murder,
    And the roast flesh a father tasted—swallowed!

Again[16]:

    See the beginning of sorrows: what are these,
    What dreamlike forms kneel on yon roof? Young boys
    As they’d been slain by those who should have loved them,
    Holding a burden piteous to be borne—
    Gobbets of flesh, their very own, their entrails
    Clearly discernible, the heart, the liver,
    Of which their father ate!

In these lines we can hear the rumblings of the coming storm. When the
storm has passed, when the curse has found its mark, Clytaemnestra echoes
the same sentiment, thus representing herself as the divine instrument of
an avenging Justice. She says to the Chorus[17]:

    Ye proclaim it my deed. Yet, beware!...
    ’Tis the spirit of Vengeance awaking from sleep
    For the banquet of Atreus of old to Thyestes cruelly given,
    Putting on the resemblance of her that was queen to the dead,
          That hath visited all upon him
    And hath sternly repaid a grown victim for little ones slain.

A second important point of difference between the Homeric story and
that of the _Agamemnon_ is the reference in the latter story to the
‘sacrifice of Iphigeneia,’ the daughter of Agamemnon, at the hands of her
father, at Aulis, and the interpretation of this act, by Clytaemnestra,
as a justification for the death which she inflicted on Agamemnon. It
would take us too far afield if we attempted to explain, at this stage,
the origin of the story of the sacrifice of Iphigeneia. England gives
an excellent account of this difficult problem in his edition of the
_Iphigenia Taurica_ of Euripides,[18] and we shall recur to this topic
when we come to deal with that play. The following points, however, may
here be briefly indicated:

(1) The ‘sacrifice’ of the daughter of Agamemnon to Artemis at Aulis
would certainly have been referred to by Homer if it had been an
historical fact, or even if the poet had heard a rumour of such a strange
event.

(2) This sacrifice, which is used as a ‘plea’ by Clytaemnestra, and
which is a well-established element in the Oresteian legends of Attic
tragedy, could hardly have been the invention of Aeschylus, for it tends
to diminish the guilt of the villains of the drama, Clytaemnestra and
Aegisthus, and it is far too complex a story to be attributed to the
invention of a single mind. The confusion of the Homeric word Iphianassa
with Iphigeneia, which was merely a cultus-epithet of the goddess
Artemis, the invention of a mock human sacrifice at Aulis which was
suggested by a sham rite of human sacrifice at a temple of Artemis in
the Attic coast town of Halae, and the translation of Iphigeneia to a
Tauric temple of Artemis, where Orestes was said to have interviewed his
sister—all these facts suggest, we think, the ‘ecclesiastical’ origin of
the story.

(3) The doctrine of the ancestral curse would not have mediated the
identification of Iphigeneia with Iphianassa. According to this doctrine
the death of Agamemnon was a natural result of the curse of Thyestes. But
the sacrificial death of Iphigeneia cannot naturally be connected with
such a curse.

(4) The Attic legend which regarded Orestes as justified by Apollo cannot
be supposed to have contributed to the genesis of the Iphigeneia story.
It is not probable that such a legend, which conceived Clytaemnestra
as a murderess and an adulteress, would have also presented her as the
heroic avenger of an act of sacrificial bloodshed which was performed in
obedience to a divine command.

(5) It is probable therefore that, although this legend of the
‘sacrifice’ may have originated independently of the Oresteia, it was
in conjunction with a second Attic legend which decreed for Orestes a
temporary period of exile, and which depicted a less implacable but
persistent pursuit by the as yet unappeased Erinnyes, that the story of
the sacrifice of Iphigeneia developed and took final shape. For when once
a legend has admitted in the hero a degree of guilt, it is so much easier
to admit also a degree of excellence in the villain. Hence it is that in
Aeschylus, who follows mainly the first of these legends, this ‘plea’ of
Clytaemnestra is not presented in a natural or forcible manner.

It is only at the end of the play, when the spectators are so fully
convinced of the amorous infidelity, the designing malice, the flagrant
hypocrisy and the murderous brutality of this queen of Argos, that they
cannot attach much value to the boastful words which proclaim her love of
her children, that she says to the railing critics in the Chorus[19]:

      Prate not of dishonour! ‘Deserving’ were rather the word.
    Had _he_ not prepared for his house an encumbrance of woe?
          Let him not loudly plead there below
    That in paying the price of her death whom a nation deplored,
    The branch I had reared from his loins, he is slain with iniquitous
      sword.
          Men shall reap what they sow.

In regard to the penalty which Clytaemnestra expects to suffer, the
language of Aeschylus is deliberately vague. The Chorus say[20]:

    Hast thou cut him off? Thou shalt be cut off from the State.
    Our citizens shall hate thee with firm hate.

Clytaemnestra interprets these words as a threat of exile:

    That is your sentence: I must fly the land
    With public execration on my head.

We have seen[21] that an option of exile would have been permitted in
such cases in historical Attic law, for husband and wife were not usually
akin in blood. But the Achaeans did not recognise the exile penalty
in any circumstances. We have said[22] that the penalty of death and
private vendetta were the characteristics of Achaean vengeance. They
also characterised at various periods the blood-feuds of noble or royal
families whose conduct was uncontrolled by law. Thus, in fourth-century
Macedonia blood-vengeance was still of an Achaean or quasi-Achaean
type. Pausanias[23] tells how Antipater, the brother of Alexander,
ordered the Macedonians to stone to death the queen-regent Olympias, and
himself poisoned the sons of Alexander: how in turn Alexander called in
Demetrius, the son of Antigonus, and succeeded by his help in deposing
his brother Antipater and in punishing him for his matricide. Thus
Aeschylus, without knowing anything of the different modes of vengeance
of the Achaeans and the Pelasgians, was enabled, by the predominance of
Achaean vengeance in Homer, and the occurrence of quasi-Achaean vengeance
in outlying regions, to visualise[24] correctly the Achaean vengeance of
Orestes, and the Achaean punishment of Clytaemnestra. Hence he makes the
Chorus say[25]:

    O that Orestes, if he lives to-day,
    Might yet return auspiciously to Argos
    And kill both tyrants in his pride of power!

Hence the exile to which Clytaemnestra[26] refers is an Achaean ‘flight
from death.’ But the penalty of death was the ultimate aim of Achaean
vengeance; and therefore the Chorus say[27]:

    Robber is robbed: slayer slain: revenge is sure.
    Firm stands, while Zeus remains upon his throne,
    One law: who doeth shall likewise suffer.


THE ‘CHOEPHOROE’

In the _Choephoroe_ Orestes slays his mother and her paramour. Two
important deviations from the Homeric saga are manifest throughout the
play: (1) the conception of homicide as a ‘pollution,’ and (2) the
command which is given by the Delphian Apollo to Orestes, to slay his
mother in vengeance for his father’s murder. Thus Orestes says[28]:

    We shall not fail: Apollo’s mighty word
    Will be performed, that bade me stem this peril.
    High rose that sovran voice, and clearly spake
    Of stormy curses that should freeze my blood,
    Should I not wreak my father’s wrongful death.

There is no doubt about the meaning of these words. Apollo, the
oracle-god of the Delphian Amphictyony, which, as we think,[29]
contributed so much to the historical homicide code of Greece, has
issued a definite command. It must be obeyed. If it is executed, its
execution must be just. No penalties can attach to such avenging, but
punishment unthinkable follows failure to avenge. Orestes tells us that
he would at least have lost his life if he did not slay his mother. But
a real Homeric Achaean would not have suffered for failure to avenge.
Was this Aeschylean conception, then, derived from contemporary Attic
law? Would an Athenian citizen of historical times have suffered in such
circumstances? We have seen[30] that pecuniary ‘private settlements’
were actual events, though not, as we think, legal events in historical
Athens. In such cases a relative of the slain would have benefited
by failure to prosecute.[31] But we have also shown that in Athens a
relative of a slain person who did not prosecute could be proceeded
against on a charge of impiety: and it is probable that, if convicted,
he would have been degraded from citizenship and sentenced to perpetual
exile. Are we then to suppose that Aeschylus deliberately imported into
the Homeric story conceptions which he borrowed from contemporary Attic
law, and that he also imported Apollo as a _deus ex machina_ whose rôle
it was to propound Athenian law to an Achaean king? This hypothesis is
very unsatisfactory. We prefer to believe that the non-Homeric elements
in this play had gradually found their way into the legend as it was
transmitted down the ages. It is, of course, unfortunate that the
legend-makers did not remember that Orestes lived at a time when murder
was not regarded as a ‘pollution’: but in a legend which evolved through
a long period of time it was inevitable that sentiments and customs of a
later age should have been attributed, anachronistically, to the people
of earlier periods.

We have already referred[32] to the anger which it was believed that a
slain person felt towards his relatives who did not avenge him, and which
contributed to the ‘pollution’ of delinquent relatives. It is only from
this standpoint that we can understand Orestes’ reference to the evils
that would follow his failure to avenge[33]:

    The darkling arrow of the dead that flies
    From kindred souls abominably slain,
    And madness and vain terror of the mind
    Should harass and unman me till the State
    Should drive me forth, with brands upon my body.
    So vexed, so banished, I should have no share
    Of wine or dear libation, but unseen
    My father’s wrath should drive me from all altars.
    None should receive me: none should dwell with me,
    And my long friendless life, bereft of honours,
    Should shrivel down to darkness and decay.

The reference to the State in this quotation is noteworthy. In such a
reference we find ourselves very far removed from the Homeric saga and
the days of private vengeance! The brand or stigma which is mentioned
is that civic degradation which is known as ἄτιμία. We cannot suppose
that these actual words were recorded in the legend which Aeschylus
follows. The statement is much too long for a real oracle! Did Aeschylus
then derive this sentiment from contemporary Attic life? We have seen
that the pollution-doctrine was closely associated, in Greece, with
the interference of the State in matters of homicide. It follows that
the importation of this doctrine into the Oresteian legend would have
naturally introduced, also, the conception of Orestes as a State
criminal, worthy of State punishment. When once the legend received, so
to speak, this colouring, the general atmosphere of the story would have
suggested such words as are attributed in this quotation to Orestes. We
believe that these words of Orestes are the creation of Aeschylus’ own
mind, but we do not attribute to Aeschylus the creation of the legendary
atmosphere which makes such words intelligible.

There is a subtle suggestion of the clash of clan-feuds which
characterised the transition period of the Dark Ages in the Aeschylean
description of the conflict of viewpoints between the Erinnyes of
Agamemnon and the Erinnyes of Clytaemnestra—a conflict which it is
improbable that Aeschylus invented. The avenging goddesses are conceived
as real beings: they are not mere delusions or ‘extrajections’ of a
distracted mind. We have already referred[34] to Orestes’ fear of the
‘darkling arrow’ which may be hurled at him by the Erinnyes of his
father. On the other side, however, stand the Erinnyes of his mother, who
are equally formidable. Orestes says[35]:

                              Ah! ah!
    What grisly troup come yonder in grey robes,
    With Gorgon faces and thick serpent hair
    Twisted in writhing coils? I must be gone.
    This is no fancy, but a present woe.
    I see my mother’s Furies clearly there!

This conflict Apollo, of himself unaided, is unable to avert. But we
shall now see how Apollo and Athene, in conjunction, persuade the Furies
of Clytaemnestra to accept ‘appeasement.’ It was thus, as we conceive
it, that the religion of pollution and political synoekism ultimately
overcame the resistance of the clans to new laws and new gods. It was
thus that, after years of chaos and transition, ghosts came at length to
obey State gods and State laws as in tribal life they obeyed the ‘dooms’
of the tribe.


THE ‘EUMENIDES’

The main theme of the _Eumenides_ is the trial, at the Athenian
Areopagus, of the Argive Orestes who had slain at Argos his mother and
her paramour, and who upon acquittal returns to Argos to occupy the
throne of his murdered father. We admit that the exaltation of the
Areopagus is one of the motives of the dramatist. There is much to be
said for the view of Blass[36] that the conflict between Apollo and
the Furies made this ‘divine drama’ worthy of Athenian interest. But
we maintain that Aeschylus would not have selected such a theme for
presentation to an Athenian audience, if it had not also contained a
difficult legal problem which was calculated to thrill the emotions of
those litigious men of Athens who were at once judges, litigants and
legislators. The play was produced at the time of the curtailment of
the powers of the Areopagus by Pericles and by Ephialtes. Aeschylus
suggests[37] that it was this Council which held the first trial for
bloodshed in a barbarian world. In this view there is no protest against
the reform of Ephialtes, for such a reform seemed to recognise that
homicide-trial was the sole and proper function of the Areopagus.

Whether the play was produced before or after this reform it is
impossible to say. Bury holds[38] that the play is not a protest after
the event, that, on the contrary, Aeschylus approved of the reform. Other
scholars maintain, however, that Aeschylus was opposed to democratic
interference with the established privileges of an ancient Council,
and that he left Athens on this account and died in Sicily of a broken
heart.[39] Our reading of the play inclines us to support the view of
Jevons which will be manifest from the following extract[40]: ‘The
_Eumenides_,’ he says, ‘was produced in 458 B.C. ... at a time of great
political excitement in Athens. The oligarchical party had just been
defeated on both their foreign and their home policy. Their foreign
policy was alliance with Sparta.[41] The home policy consisted in
opposing such changes in the constitution as would give more power to
the people, and at this time also consisted particularly in supporting
the powers and privileges of the Areopagus against the attacks of the
democratic party.... The democrats under Ephialtes succeeded in depriving
the Areopagus of its political powers, leaving to it only the right of
trying cases of homicide....[42] The _Eumenides_ is sometimes said to be
a panegyric on the Areopagus and sometimes even to have been a call to
all good men to join in preserving to it the political powers which it
had long enjoyed. But it is probable that the _Eumenides_ was produced
after the reforms of Ephialtes: and as Aeschylus represents the Aeropagus
to have been founded to try cases of homicide, the very class of cases
which Ephialtes left to it, it is more reasonable to regard the play as
having been intended to reconcile those who strove for the preservation
of the political powers of the Areopagus to the new state of things
which Aeschylus shows to be in harmony with the original nature of the
court. This view receives some support from the fact that the alliance
with Argos to which the oligarchic party was opposed is also shown by
Aeschylus (727 _et seq._) to be in harmony with tradition, myth, and
religion.’[43]

Verrall takes up a similar attitude to this problem[44]: ‘It is clear,’
he says, ‘from the tone of the final scene and it is generally recognised
that Aeschylus did not intend to appear at least as a partisan, that
he supposed himself to be a peacemaker and to have advanced only what
would be generally approved. He justifies trial by jury: he extols the
Areopagus as a court of crime: he leaves room, but in vague terms, for a
larger execution of its vigilant protection.... He is for the middle way,
“neither tyranny nor anarchy.”... But the attitude of the poet is not
that of a practical politician. Religion, always first with him, in the
_Eumenides_ covers the whole field.’

We do not agree with Verrall’s view that Aeschylus justifies ‘trial by
jury,’ if Verrall means by this phrase trial by popular juries such as
the Heliasts of the post-Solonian age. The Areopagus was never invaded
by the Heliasts. Its procedure was fundamentally different from that of
Heliastic courts. Its personnel was composed of archons and ex-archons.
It is to such judges that Athene refers when she says that she will
select, for the trial, the best of her citizens.[45] There was for
the Areopagus no election by lot, such as characterised the popular
juries,[46] nor is there in the phrase ἀστῶν τῶν ἐμῶν τὰ βέλτατα any
reference to the Ephetae, the aristocracy of birth. Aeschylus either
never knew, or he has forgotten, or he has perhaps deliberately ignored
the aristocratic character of the pre-Solonian Ephetae-Areopagus.[47]
It is the plutocratic Solonian Areopagus of the sixth century and of
his own day that he puts before us. When Verrall says that ‘Aeschylus
leaves room ... for a larger execution of its vigilant protection,’ he
implies that Aeschylus opposed the reform of Ephialtes. As this view
commits Aeschylus to the exaltation of plutocracy, we prefer, with the
scholiast, to give a narrower interpretation to the phrase εὑδόντων ὕπερ
ἐγρηγορὸς φρούρημα[48] and we translate it: ‘the vigilant custodian of
vengeance for the slain,’ whereas Verrall takes the ‘sleepers’ to mean
‘the citizens when they are asleep at night.’

We think, moreover, that Verrall overestimates the religious as distinct
from the legal aspect of the play. Apollo and the Furies seem to us to
present a rather sordid picture at the trial. If Apollo had maintained
his traditional rôle of Olympian autocracy, he would have been more
impressive. As it is, he condescends to discuss the justice of Orestes’
act with rival deities of a quasi-diabolical type: and his arguments
are rhetorical rather than logical. He advances the absurd opinion
that the real parent of a child is the father not the mother.[49] This
view and the similar opinion of Athene[50] may of course be explained
as a characteristic sentiment of the Eupatridae, an Athenian noble
caste, who were excluded from the worship[51] of the Semnai Theai at
Athens, a sentiment which is here directed against the Erinnyes, by
way of anticipation, in view of their prospective metamorphosis into
Semnai Theai.[52] But it is more probable that the argument represents
an undignified squabble between Olympian gods and Chthonian goddesses,
between the deities of the ‘pollution’ religion and of new-born Greek
States, on the one hand, and the old clan-ghosts who are here conceived
as Titans, on the other.[53] The Furies are not even consistent with
themselves. At one time[54] they pose as the avengers of all kinds of
homicide: at another[55] they are only concerned with kin-slaying. The
Olympian exaltation of ‘the father’ is met, swiftly and flippantly, in
the manner of repartee, by an objectionable quotation from Olympian
theology! ‘Did not Zeus,’ the Furies ask,[56] ‘bind in chains his aged
father Kronos?’ The answer of Apollo is even weaker than the question:
‘to fetter,’ he says, ‘is not to slay....[57] Remedies for the one are
easy, remedies for the other there are none!’ If then the religious
aspect of the trial of Orestes had been predominant or paramount in the
mind of Aeschylus, we do not think that he would have presented the
gods in such a frivolous and futile manner to an audience of Athenian
citizens. He would, much more probably, have followed a different form
of the legend, which is found in Euripides,[58] and is mentioned by
Demosthenes,[59] and which represented the Twelve Olympian Gods as the
judges of Orestes’ guilt. Hence we believe that the dramatic aspect
of the story was the more important one for Aeschylus. The essence of
tragedy is conflict, and there is conflict in the _Eumenides_, between
rival emotions, between rival ethical theories, between rival gods and
goddesses, first, last, and all the time! But next in importance to
the dramatic motive we place the legal motive of the play. We do not
agree with Verrall in maintaining[60] that ‘what is certain is that
in the law of the matter, the law proper, he (Aeschylus) took little
interest. The ultimate issue of his play is not legal but religious....
It matters nothing that the prosecutors, in different parts of the
play, assume, respecting the limits of punishable homicide, views which
are not compatible: or again that the question of the validity of the
oracular command, though it is a main point in the defence, and though
the jury must be supposed to disagree about it, is not argued, unless
contradiction is argument, at all.... On law, therefore, and the history
of law, the _Eumenides_ is but a dubious authority: and the reader or
expositor of Aeschylus as such is not bound or perhaps entitled to
consider the play from this point of view.’ This kind of reasoning seems
to us very suggestive of a well-defined mental attitude, namely, that
of a writer who knows little or nothing about law and who, in addition,
does not want to know anything about it. We do not assert that the legal
problems of the _Eumenides_ are simple, but they cannot for that reason
be ignored. The more difficult a problem is, the greater is the prestige
of a court which can decide the issue. Athene confesses the difficulty of
the problem in this play and she requests the citizens of Athens to solve
it.[61] What an exaltation of religion! What a contempt for law!

The legal complexities of the trial of Orestes arise, we have said,
from the circumstances which attended the evolution of the legends. The
introduction of the story of Apollo’s command to Orestes was intended
by the legend-makers of the ‘pollution’ era to explain and to reinforce
the Homeric conception of Orestes’ act as justifiable matricide. That
Apollo’s command justified his act is the legal plea of Orestes, in this
play; at least, it is the predominant plea.

Thus he says to Apollo[62]:

    Now give thy witness and expound the truth.
    Apollo, was I just in slaying her?
    To have done it I deny not. ’Tis the fact.
    But whether to thy thought this matricide
    Be justified or no, declare thy mind
    For information of those present here.

We may naturally ask: ‘Why is Apollo appealed to for judgment, when he
has been cited as a witness?’ We have argued that, in Attic law, if we
may trust Plato,[63] matricide could never have been legally justified.
On the other hand the Apolline doctrine of pollution declared that the
defaulting avenger was polluted. The pollution doctrine permitted and
did not condemn ‘private execution.’ It was synoekised State power which
made such execution criminal.[64] The conflict which is presented by
these different points of view was too grave a matter for the decision of
a human court. The command of Apollo was regarded by the legend-makers
as the only solution of that conflict. The only question which a human
court could be reasonably expected to decide was the question whether
Apollo did actually command the act of Orestes. If the actuality of such
a command was established, the acquittal of Orestes was inevitable.
The only alternative possibility was a verdict of ‘responsibility
for murder’[65] against Apollo! But such a verdict, in the religious
atmosphere of the ancient City, would have been unthinkable.

So far therefore the legal issue in the _Eumenides_ is comparatively
intelligible. But we must call attention to the peculiar fact that in
the play Orestes is represented as having been tried not at Argos but at
Athens. If Orestes had slain his mother at Athens, his act would have
been, in Athenian law, a case of homicide between foreigners, and such an
act, though normally in Aeschylean Athens tried by the Palladium court,
could quite conceivably, in pre-Solonian times, have been tried by the
Areopagus. But Orestes did not slay his mother at Athens, and therefore
the case would not have come before any Athenian court, unless Orestes
intended to reside at Athens, and his right to reside at Athens was
challenged by the relatives of the slain. Now, in Greek extradition law
these relatives[66] had no right to object to the residence of the slayer
‘abroad’ unless he was guilty of wilful kin-slaying, as, for instance,
of wilful matricide: for the penalty for kin-slaying in historical
times was death, without the option of exile. It is precisely on such a
charge of wilful matricide that the Erinnyes, in this play, prosecute
Orestes. To that extent their prosecution was lawful. But the fact that
the prosecution took place at Athens implies that Orestes intended to
live in Athens as an exile, at least for a time. We have pointed out
that, according to Greek extradition law, the relatives of the slain
could have compelled the fellow-citizens of the slayer to try him or to
extradite him if he fled to them for refuge. But in cases of kin-slaying
it is probable that any State to which the slayer fled could have been
compelled to put him on trial before they received him as an exile, or
otherwise to expel or extradite him. Yet the avenging relatives were not
compelled to accept a verdict of acquittal in any court as a complete
restoration of the slayer to social and religious communion, just as in
certain cases of kin-slaying the relatives were not compelled to admit
the slayer to domestic communion, even when his own State court had
permitted his return from exile. Hence, in the Oresteia, a verdict of
acquittal brought in by the Athenian Areopagus in regard to a foreign
Argive kin-slayer was primarily intended to legalise the residence at
Athens of Orestes, but it could not have legalised his return to Argos
unless the relatives of the slain accepted the verdict of the Athenian
court as a final verdict of innocence, and ceased, of their own accord,
from further prosecution. Now, the legends of Orestes seem to differ in
their account of the ‘appeasement’ of the Erinnyes of Clytaemnestra. In
some legends, as in that upon which is based the _Iphigenia Taurica_ of
Euripides, the Furies do not accept the verdict of the Areopagus, and
continue to pursue him over land and sea. The fact that they can drive
him out of Athens is due to their divine power. In law, ordinary human
relatives could not have done so. But it is clear that, in the absence
of unanimity in regard to the attitude of the Erinnyes to the Areopagus,
the Attic legend-makers who emphasised the connexion of Orestes with the
Areopagus must have assumed that Orestes intended to reside, at least
for a time, as a homicide-exile at Athens. Now there is no evidence in
Homer of such an intention on the part of Orestes. In Homer, Orestes went
to Athens _before_, not _after_, he slew his mother. Hence the whole
basis of the Attic legends of Orestes is a pure assumption, without any
historical foundation.

The main difficulty which the ancients found in the post-Homeric legends
of Orestes was the interpretation of the command which Apollo gave to
Orestes. Some legends, of course, such as that which we have called the
‘Argive legend,’[67] did not include any reference whatever to such a
command. But in the Attic legends, which represent this command as an
essential element in the story, there is no precise and definite answer
to the question: ‘Did this command justify the vengeance of Orestes
or was it a mere “extenuation” of his guilt?’ We have said that the
conception of this command as a complete justification predominates
in the _Eumenides_, though the Erinnyes naturally object to this
interpretation. But the command may also be regarded as an abnormal
psychic factor which would make it possible to interpret the act of
Orestes as ‘kin-slaying in a passion,’ or extenuated kin-slaying, which
is akin to involuntary homicide. It is only thus that we can explain
the reference in certain forms of the legend to a penalty of one year’s
exile: and to other details of punishment which are never associated with
voluntary homicide. The Furies, in the _Eumenides_,[68] find it difficult
to conceive that Orestes will ever return to his domestic religion. Now
Plato[69] asserts that a son who slew his parent in a passion could not,
unless the dying parent ‘forgave,’ return again to his domestic hearth,
even though he could return, after a period of exile, to his native
State. We cannot suppose that the Furies, in the _Eumenides_, represent
an attitude of ‘forgiveness’ on the part of Clytaemnestra, and hence
we could not expect them to accept the possibility of Orestes’ return
to his native home in Argos. But the mere mention of such a detail
suggests a plea of quasi-involuntary matricide. A verdict of acquittal
on a plea of justifiable slaying is precisely the verdict which the
Erinnyes in Aeschylus, before their ‘conversion,’ cannot recognise. But
they might have accepted as an alternative to their charge of wilful
matricide a charge of extenuated matricide. Such a charge, such a
conception of Orestes’ guilt, is very prominent in a form of the legend
which Euripides gives.[70] But even in Aeschylus this conception is not
altogether absent, though it is very much suppressed, perhaps because it
was inconsistent with the dominant viewpoint of the Aeschylean drama.
Thus, Orestes suggests that before he came to Athens to stand his trial
he had already atoned for any element of guilt which was involved in his
obedience to Apollo. He says to Athene, before the trial[71]:

    Sovereign Athene, sped by Phoebus’ word,
    I come. Do thou with clemency receive
    The outcast—not red-handed nor unpurged,
    But mellowed by long time and travel-worn.
    Among new households, alien ways, o’er land
    And beyond sea....
    Taught wisdom in the school of misery,
    I am learned in all atonement.... The stains
    Of slaughter on my hands are dulled and pale.
    The guilt of matricide is washed away,
    For while quite recent, at Apollo’s hearth,
    ’Twas driven out and purged with death of swine,
    And tedious were the number to tell o’er
    Of men I have communed with without harm.
    All-mellowing time makes old defilement pure.

Nothing can remove the inconsistency in this quotation. We seek merely
to explain it by attributing it to a confusion of two different legends,
which viewed the act of Orestes from two different legal standpoints.
In this passage Aeschylus happens to emphasise a standpoint which he
usually ignores, namely the conception of Orestes as a matricide of
partial guilt, or as an extenuated matricide, the conception which
underlies the stories of the wandering of Orestes and of his sojourn as
a homicide-exile in various lands. If Aeschylus does not consistently
exclude this conception from his drama, this must be attributed not only
to a certain legal affinity which exists between the conception[72] of
Orestes as justified, and the conception of him as partially guilty, but
also to a confusion of these conceptions in pre-existing legends.

This analysis which we have given indicates, at least, the value of
legal considerations for the complete intelligibility of this play. For
the history of law, also, we may infer from Aeschylus, or rather from
pre-Aeschylean legend, that the early Areopagus, and therefore the early
Ephetae courts, adjudicated in various kinds of homicide cases. The
division of labour which took place, we believe,[73] in pre-Solonian
times, and which left to the Areopagus exclusive jurisdiction in cases
of wilful murder, of malicious wounding, and of poisoning with intent to
kill, had obviously not yet appeared at the time when this Attic legend
took shape. There is thus no basis for Ridgeway’s hypothesis[74] that
the place of Orestes’ trial was not the Areopagus but the Palladium. The
image of Athene which Orestes embraces in the _Eumenides_ was not, as
Ridgeway thinks, the famous wooden image of the goddess at the Palladium,
but was rather, as Müller points out,[75] the image of Athene on the
Acropolis.

The relation between the legal and the dramatic aspects of the story
of Orestes may be indicated by the following useful, if fanciful,
hypothesis: Let us suppose, for the moment, that there existed in the
time of Aeschylus no other legends of Orestes except that which is found
in the Homeric poems. If Aeschylus wished to incorporate this legend, in
the form of a tragic drama, following we may assume in his dramatic art
the Horatian maxim[76]:

    aut famam sequere aut sibi convenientia finge,

he could have followed one or other of two possible courses: On the one
hand he could have simply dramatised the Homeric story in its original
setting, thus giving us what would be called an ‘historical drama,’
or, on the other hand, he could have invented a ‘drama’ in which the
facts, the names and the characters alone were Homeric, but the ideas,
the viewpoints, the legal and religious atmosphere were derived from
contemporary life. If Aeschylus had chosen the former course he could
not have produced a trilogy such as we now possess: the _Eumenides_ at
least would have been impossible: he could, however, have written the
_Agamemnon_, and a _Choephoroe_ somewhat similar to, though also somewhat
different from, our present play, as both these dramas are Homeric
in their main outlook. Again, if we suppose that Aeschylus chose the
second course, the _Agamemnon_ would still have been possible: but the
_Choephoroe_ would have been unrecognisable—in fact, there could not
have been a _Choephoroe_ at all: Orestes could not have been regarded
as the sole or proper agent of execution: if he slew his mother without
trial, or without having given her the option of exile, he would
have been a State criminal, liable to prosecution as a matricide or a
violator of civic law. The _Eumenides_ would also, in this hypothesis,
have been very different. There could not have been any doubt regarding
Orestes’ guilt or the verdict of the court: there could not have been
any conflict between Apollo and the Erinnyes. There could, in short,
have been no _Eumenides_ drama worthy of the name. We may therefore, as
a result of this reasoning, and from the actual nature of the extant
Oresteian trilogy, infer that there must have existed a post-Homeric
pre-Aeschylean legend, or legends, of Orestes which predetermined the
Aeschylean presentation of the story. These legends, by combining very
different reflections in the course of legal and religious developments,
created the moral and the legal problems of the Oresteia. It was probably
these problems which constituted, for the litigiously minded Athenian
people, the main dramatic interest of the _Eumenides_, if not also of the
_Choephoroe_. But that interest was purchased at the cost of obscurity
and confusion. It is, for instance, quite inconsistent for Aeschylus to
have represented the trial of Orestes as the first Greek trial[77] of
homicide and at the same time to have conceived Orestes as guilty of
bloodshed: for it was at the precise moment at which State trial and
State execution came into being that Orestes became a criminal! Before
that moment he was simply the normal avenger of blood. This inconsistency
is, we think, a proof that the Aeschylean story was not his own
invention: for if Aeschylus had invented it, it would not have contained
so many inconsistencies. On the other hand, inconsistency would naturally
have characterised a legend which evolved through ages of legal and
religious transitions. When once it had become stereotyped in the story,
Aeschylus could not, even if he would, have thought it away.

Verrall therefore is right in saying[78] ‘That a legend gave the main
fact, the prosecution of Orestes by the Erinnyes before a tribunal at
Athens and his acquittal there, might safely be inferred from the play
and is beyond doubt.’ And Müller says[79]: ‘The transmutation of the
Erinnyes into Eumenides formed in Greece an essential appurtenance to the
legend of Orestes. The persecution of Orestes from country to country by
his mother’s Erinnyes, in the place of human vengeance, was no invention
of poet or priest but Greek national tradition.’

The ‘tragic’ Erinnyes, whom we have already encountered in the
_Choephoroe_,[80] find in the _Eumenides_ their real battle-ground. In
this drama they have received from the hands of Aeschylus an immortality
which no mere legend or even religious ritual could ever have bestowed.
In the dramatisation of those Titanic shapes the genius of Aeschylus
found congenial work: but what, if any, elements of the final product
were ‘invented’ by him is a matter of dispute. Miss Harrison thinks that
the Erinnyes, _qua_ Erinnyes, had no special cult in Greece. This view
implies that religion, or image-magic, had not created these monstrous
forms. Müller,[81] however, thinks that in a chasm near the temple of
the Semnai Theai beside the Areopagus there were, in all probability,
carved wooden images of the Erinnyes. But these images, he holds, did
not influence the Aeschylean picture. ‘In the outward and visible form
of the Erinnyes,’ he says, ‘Aeschylus seems to have drawn a good deal
on his invention, for the earlier poets had no definite image of the
goddesses before their eyes: and though there were in the Temple at
Athens old carved wooden images of the Semnai, still their figures could
not be adapted for dramatic purposes. Hence it is that the Pythian
priestess after having beheld the Erinnyes is only able to describe their
forms without being apprised thereby of the nature of the beings she
had seen.’ Pausanias[82] says that it was an innovation on the part of
Aeschylus to have represented the Furies ‘with snakes in their hair.’
Müller holds that this was not an innovation, but that it was borrowed
from the images of Gorgons.[83] The Furies are compared to Gorgons in
the _Choephoroe_.[84] We have elsewhere maintained[85] that it was from
the Gorgon images which, in the _Ion_ of Euripides,[86] are depicted
as sitting around the Omphalos at Delphi, that Aeschylus got his idea
of the ‘tragic’ Erinnyes. But in the _Eumenides_ the Pythian priestess
definitely states that though similar to the Gorgons they are not
identical with them. If they had been identical she would no doubt have
recognised them: moreover, they are not Harpies, she says, because they
have no wings.

Hence we are of the opinion that Aeschylus, feeling that he was not
bound by any definite traditional form, conceived the Erinnyes as
monsters-in-general, but with a predominantly human shape in order to
prepare the way for their subsequent transformation into Semnai Theai. In
a certain still extant vase-painting[87] which represents a scene from
the _Eumenides_, the figure of the Fury could be transformed into the
image of a respectable goddess by merely removing the snake which hisses
at Orestes, above her head! But the nature and function of the ‘tragic’
Erinnyes are not the invention of Aeschylus. Their form, indeed, his hand
defined, but their nature and their character had long been enshrined
in traditional legend. We have suggested[88] the social, legal, and
religious transitions which led to the birth of these quasi-diabolical
monsters. While the docile Pelasgian ghosts of primeval days have many
affinities with the Semnai Theai in whose forms Pausanias[89] could
discern nothing terrible or dreadful, the ‘tragic’ Erinnyes, which are
a product of post-Homeric times,[90] appear in the rôle of avengers so
savage and so implacable that they cannot be recognised by either ghosts
or gods. Thus Apollo says to Orestes[91]:

    Even now thou see’st those Furies overtaken,
    Their madness lost in sleep: maidens abhorred,
    Aged, but ever crude, whom none that lives,
    Man, god or beast e’er met in fellowship.
    To evil they were born, evil the gloom
    Of Tartarus, their haunt beneath the ground,
    And hated both of men and gods in Heaven
    The power they exercise.

We have already discussed[92] the problem involved in the refusal, on the
part of the Erinnyes in this play, to recognise the purgation of Orestes.
This purgation ceremony is quite naturally attributed by Aeschylus to
Apollo, who was the pioneer deity of the purgation-system. It could not
have been performed in historical times by priests or purifiers, since
the matricide had not been previously acquitted by a court. Hence the
purgation of an untried kin-slayer, which in Attic law would have been
invalid, was naturally rejected by the Erinnyes. They say[93]:

    Such deeds the younger brood of gods will do,
    Swaying all things by force beyond the right.
    One sheet of gore, mantled from base to cope,
    Earth’s midmost shrine is visibly beheld
    Self-cloaked with horror-breathing guilt of blood.
    O prophet-god! Thou hast stained thine own hearthstone
    From thine own mind, moved by no just appeal,
    Breaking the law of gods to honour man.

But Apollo regards them as Titan-rebels, as deities of a barbarous past.
He sees in them the avengers of the Dark Ages.[94]

    Begone! I bid you, forth of mine abode!...
    Profane not with your presence this fair shrine,
    But go where headsmen execute the doom,
    Where eyes are gouged, throats gashed, where robbed of prime,
    Boys lose all hope of offspring, tender limbs
    Are hacked or stoned: where men, impaled alive,
    Moan long and bitterly.... Go,
    Inhabit, as beseems such form, the den
    Of some blood-lapping lion, nor infect
    With touch accursed my oracular seat.
    Go! herded by no goat-herd, ye fell flock,
    Hated of all in Heaven. Away! Depart!

Yet the Erinnyes have not lost all traces of the ghost-cult of primitive
ancestor-worship and fertility-worship. We have already quoted[95] the
magnificent passage in which they promise their blessings to the Attic
land. We are reminded of primitive ancestral ghosts by the words which
Clytaemnestra (herself a ghost) speaks to the Erinnyes[96]:

    Much wealth of mine ye have glutted, drink offerings,
    Unmixed with wine, tempered to soothe your heart;
    And rich burnt offerings at dead of night,
    That hour of dread, avoided by all gods.

The conception of the Erinnyes as Titans is established by comparing
their frequent references in this play to Apollo and Athene as ‘younger
gods’[97] with their words applied by Prometheus, in another play, to the
Olympian gods[98]:

    Yet who but I to these new deities
    Gave and determined each prerogative?

and again[99]:

    Young gods, young pride of unproved majesty.

We agree with Müller[100] that the ‘appeasement’ of the Furies and
their transmutation into Semnai Theai was an essential part of the
pre-Aeschylean legend. We have already suggested the forces which
probably contributed to the story of their ‘conversion.’ Beneath the
religious, mythical story of a transference of cult, beneath the story
of the adoption by the Erinnyes of the worship of the Semnai, lurks, we
believe, the echo if not the reality of legal and social evolution. The
‘conversion’ of the Erinnyes, which directly indicates the acceptance, on
the part of non-Athenian avengers, of the verdict of an Athenian homicide
court, symbolises also, in general, the acquiescence of rebellious
clans, which in the seventh century B.C. were deprived of material
retribution in cases of bloodshed, in the new system—the historical
system—of murder-penalties, which we have associated with Apollo and
political synoekism. The cult of the ‘Eumenides,’ who were probably
the ‘Semnai’ under a different name, we need not discuss here. It is a
religious rather than a legal matter. It has been discussed at length by
Verrall,[101] Miss Harrison,[102] Müller,[103] and others, and we do not
see that its elucidation affects in the least the intelligibility of this
play.


THE ‘SUPPLIANTS’ AND THE ‘SEVEN AGAINST THEBES’

In the remaining plays of Aeschylus there is little or nothing which is
worthy of comment from our present viewpoint. In the _Suppliants_, the
daughters of Danaus, in their efforts to avoid incestuous marriage, seek
asylum at Argos. They have some difficulty in obtaining refuge there, and
they feel it necessary to describe themselves thus:

    Exiles from the sacred land
      Bordering Syria’s meads, we flee,
    Not for guilt of murder banned
      By a people’s just decree.[104]

In this play the daughters of Danaus are not yet wedded nor have they
slain their cousins, the sons of Aegyptus. We believe, however, that
Aeschylus is thinking of their subsequent kin-slaying when he attributes
to them these words. In historical Greece, persons guilty of ordinary
homicide were legally entitled to reside as aliens abroad. It is only to
kin-slayers that we can properly apply an expression which suggests that
slayers could not be accorded the privilege of exile.

In the _Septem_ we read of the impossibility of cleansing
kin-slaughter—an idea which we have already explained.[105] The reference
is to the war of the ‘Seven against Thebes’ and to the death of Eteocles
and Polyneices[106]:

    Enough that Argive and Cadmean came
    To the issue: blood so shed hath power to cleanse.
    But death of brothers, each by a brother’s hand,
    That were a stain no time could purify.

Finally, the doctrine of the ancestral curse is applied to the guilt of
fratricide[107] in the lines:

            What charm may purge the guilt
              Of blood so foully spilt?
    Whose hands shall bathe them? Oh! unhappy store
    Of fresh woes for this House, blent with the woes before!


FOOTNOTES

[1] _A.P._ 119.

[2] _Supra_, p. 72 ff.

[3] Euripides, _Electra_, 1275, _Orestes_, 1647.

[4] Schol. ad Eur. _Orestes_, 1640.

[5] Eur. _Orestes_, 1654; Pausanias, iii. 1. 16.

[6] Eur. _Orestes_, 1660.

[7] _Supra_, p. 214.

[8] 1250, 1274.

[9] Eur. _Orestes_ (1645 ff.); _Iph. in Tauris_.

[10] _Infra_, p. 375 ff.

[11] _Supra_, p. 270 ff.

[12] See Jebb’s edition Soph. _Electra_, Introd. p. xxii.

[13] _Supra_, p. 122.

[14] _Orestes_, 990 ff.

[15] 1095 ff. (trans. L. Campbell).

[16] 1220 ff.

[17] 1495 ff.

[18] See Introduction, p. xii ff.

[19] 1520.

[20] 1410 ff.

[21] _Supra_, p. 238.

[22] _Supra_, pp. 2, 27, 65.

[23] ix. 7.

[24] See _infra_, p. 422.

[25] 1645 ff.

[26] 1413.

[27] 1555 ff.

[28] 268 ff.

[29] _Supra_, p. 156 ff.

[30] _Supra_, p. 174 ff.

[31] _Supra_, p. 180 ff.

[32] _Supra_, pp. 148, 178, 211.

[33] 285 ff.

[34] _Supra_, p. 285.

[35] 1046 ff.

[36] See Introduction to _Eumenides_.

[37] _Eum._ 685.

[38] _H. of G._ p. 348.

[39] See question discussed in Bury, _loc. cit._ and in Jevons, _Hist.
Gk. Lit._ pp. 194 ff.

[40] _Op. cit._ p. 194.

[41] That of the democrats was alliance with Argos.

[42] _Op. cit._ p. 195.

[43] _Ib._ p. 196.

[44] Introd. to _Eum._ p. xlix.

[45] _Eum._ 490.

[46] Aristotle, _Ath. Pol._ chs. 3, 7, 63.

[47] _Supra_, p. 269 ff.

[48] 708.

[49] 661 ff.

[50] 740.

[51] Schol. ad Soph. _Oed. Col._ 489; Harrison, _Proleg._ p. 246.

[52] Harrison, _loc. cit._

[53] _Infra_, p. 300 f.

[54] 338, 424.

[55] 210, 212, 608.

[56] 644.

[57] 648 ff.

[58] _Orestes_, 1650.

[59] _In Aristoc._ 641, 27.

[60] Introd. p. xlvi.

[61] 474, 484.

[62] 612 ff.

[63] _Laws_, ix. ch. 9; _supra_, p. 215.

[64] _Supra_, p. 229.

[65] Cp. Dracon’s phrase αἴτιος φόνου, _supra_, p. 193.

[66] Dem. _In Aristoc._ 647, 24-648.

[67] _Supra_, p. 277.

[68] 660-665.

[69] _Laws_, ix. ch. 9.

[70] See _infra_, pp. 341, 359.

[71] _Eum._ 236-240, 276-286.

[72] _Supra_, p. 214. It must be remembered that in strict law it was
not possible to plead extenuation in cases of deliberate parent-slaying
(Plato, _Laws_, ix. ch. 9). The command of Apollo, however, gives an
extra-legal aspect to the story.

[73] _Supra_, p. 272 f.

[74] See _Classical Review_, vol. xxi. p. 163 ff.

[75] _Eum._ p. 139.

[76] _A.P._ 119.

[77] _Eum._ 685.

[78] Introd. to _Eum._ p. 38.

[79] _Eum._ pp. 174-5.

[80] 1046 ff.

[81] _Eum._ p. 178.

[82] i. 28.

[83] _Op. cit._ p. 188.

[84] 1046; _supra_, p. 286.

[85] See Bayfield’s edition, and _supra_, p. 123.

[86] 224.

[87] The Orestes Vase in the British Museum.

[88] _Supra_, p. 120 ff.

[89] i. 28.

[90] _Supra_, p. 122.

[91] _Eum._ 67 ff.

[92] _Supra_, pp. 112, 120.

[93] _Eum._ 162 ff.

[94] _Eum._ 179 ff.

[95] _Supra_, p. 97 f.

[96] _Eum._ 106 ff.

[97] _Eum._ 162, 781, 811.

[98] _Prom._ 440.

[99] _Prom._ 953.

[100] _Eum._ pp. 174-5.

[101] Introd. to _Eumenides_, pp. xxxv-vi.

[102] _Proleg._ pp. 253-6.

[103] _Eum._ p. 173 ff.

[104] 4-7.

[105] _Supra_, p. 238.

[106] 666 ff.

[107] 725 ff.




CHAPTER II

SOPHOCLES


‘Greek drama,’ says Jevons,[1] ‘owes its origin to religion and its
development to art. It is but another way of stating this fact to say
that one sign of the growth of the Greek drama was the diminution of its
religious significance.’ The drama of Sophocles compared with that of
Aeschylus is less theological and celestial, more human and terrestrial.
From the artistic point of view it not only obeys the first alternative
in the Horatian maxim[2] which we have already quoted and which
prescribes adherence to traditional story; it also follows, even more
closely than Aeschylean drama, the second alternative, which exalts the
merit of consistency. Aristotle[3] has attributed to Sophocles a piece
of self-criticism in which he asserts that he depicted his characters,
‘not as they are, but as they must be’ (οἵους δεῖ). We shall not attempt
to enter into the controversy which this simple statement has evoked,[4]
but we may suggest as a probable interpretation of the words that certain
ideal criteria guided the characterisations of Sophocles. These criteria
were, in our opinion,[5] consistency and tradition. ‘The characters of
Sophocles,’ says Jevons,[6] ‘are bound up with his plots in an artistic
and harmonious whole ... it is equally true that his characters depend
upon his plots.’ But the plots and the characters of Sophocles were
not, we think, his own invention. They were derived from pre-existing
legend and tradition. If, then, Sophocles did not always represent his
characters precisely as legend described them, the reason is that there
were inconsistencies in the legends. To escape such inconsistencies,
Sophocles sometimes had recourse to what we may term eclecticism. If,
for instance, in Homer, Oedipus, after slaying his father, is said to
have continued to rule over the Cadmeans,[7] Sophocles ignored this
tradition because it was inconsistent with the sequel which post-Homeric
legend indicated.[8] Euripides, on the contrary, often reproduced, in
one and the same drama, various mutually inconsistent legends, and then
introduced a _deus ex machina_[9] to cut the Gordian knot! Nevertheless
it remains true that not only in Sophocles, but also in Aeschylus and
in Euripides, the characters and the plots are to a great extent based
upon pre-existing legends, and these legends are often very difficult
to analyse because of the varying influences which were derived from
the ages through which they passed. If religion is less prominent
in Sophocles than in Aeschylus, the reason, we think, is that the
personality of the dramatist selected those varieties of legends which
emphasised the human element rather than the divine. But, for an Athenian
of the classical period, there was one aspect of human nature which was
always interesting and could never be ignored, namely the relation of man
to the laws of the society in which he lived. Fear of the laws and of
the penalties which they prescribed, a knowledge of the laws and their
administration, a habit of legal casuistry, an almost morbid delight in
legal problems, were essential elements of Athenian psychology. To say
this is to imply that the Sophoclean drama, like that of Aeschylus, has
an important legal interest, and cannot be made completely intelligible
without an analysis of its legal aspect. Of the seven extant tragedies,
six are concerned with themes of human bloodshed. These six plays we
shall now briefly examine, from the standpoint of homicide law. With the
_Philoctetes_ we have not any special concern.


THE ‘ELECTRA’

The plot of the _Electra_ corresponds, in the main, with that of the
_Choephoroe_ of Aeschylus. It is regrettable that we do not possess
the companion plays in which Sophocles represented, dramatically,
the murder of Agamemnon and the trial of Orestes, but we may infer
from the similarity of the _Electra_ to the _Choephoroe_ that these
plays followed the Aeschylean model. We have said[10] that the trial
of Orestes at Athens for the slaying of his mother at Argos is not
legally intelligible unless we assume that Orestes fled to Athens with
the intention of residing there, in the event of acquittal, until such
time as the avenging Erinnyes permitted his return to Argos. But there
is no evidence for this assumption in the Homeric story,[11] which
merely implies that Orestes came from Athens to avenge his father’s
death. Aeschylus, therefore, is following the Attic legend rather than
Homer when he suggests that Orestes went to Athens after, not before,
he slew his mother, and that it was from Phocis, not from Athens, that
the avenging Orestes came. In Sophocles also it is from Phocis that
Orestes comes. Moreover, we are definitely told that Phocis had been
the place of Orestes’ exile since his expulsion from Argos.[12] With
Athens, then, Orestes was not associated before he slew his mother!
Aeschylus is not quite so precise upon this point, but from the words
which Orestes utters when he arrives at Athens[13] after he had slain
Clytaemnestra and Aegisthus, we cannot infer that he had ever been there
before. Sophocles, therefore, and Aeschylus seem equally to have ignored
an important element of the Homeric narrative in their close adhesion
to the Attic legends, in which the trial of the matricidal Orestes at
Athens was an outstanding essential fact. The only reason which we can
suggest for this strange omission is the fact that in post-Homeric times
the legend was so completely permeated by the dominant figure of Apollo
that Phocis, not Athens, came to be regarded by certain legend-makers
as the natural refuge and place of residence of Orestes before he slew
his mother. It is not, of course, altogether impossible to suppose that
Orestes had lived for a time in Phocis, and for a time at Athens. The
command of Apollo could have been issued to a pilgrim from Athens as
well as to a resident of Phocis. But it is strange that Aeschylus and
Sophocles do not emphasise this point. The story of Orestes’ trial at
Athens must, we think, have been based, if the legend-makers had any care
for legal issues, on the assumption that Orestes intended to reside
at Athens after he had slain his mother. This assumption is implied in
the story that an Apolline oracle directed him to Athens for trial. The
Homeric narrative does not justify though it is not inconsistent with
such an assumption. If therefore this narrative was ignored by Attic
legend-makers, it must have been because the prestige of Apollo had
obscured the Homeric story in a variant of the legend which we may call
the Phocian legend of Orestes, and because this variant, though not
originally identical with the Attic legend, became nevertheless at some
time fused with it.

If we happened to possess the non-extant drama which contained Sophocles’
account of the trial of Orestes, we feel sure that the plea of Orestes
would have been identical with the Aeschylean plea, namely that of
justifiable matricide. Thus, in the Sophoclean _Electra_ Orestes says[14]:

    I, when I visited the Pythian shrine
    Oracular that I might learn whereby
    To punish home the murderers of my sire,
    Had word from Phoebus which you straight shall hear:
    ‘No shielded host, but thine own craft, O King!
    The righteous death-blow to thine arm shall bring.’

The post-Homeric doctrine of pollution appears in the following words of
Electra, who sees in the cohabitation, within her home, of two polluted
murderers a horrible crime which well-nigh obscures their incestuous
adultery.[15]

    My mother—if she still must bear the name—
    When resting in those arms—— Her shame is dead:
    She harbours with bloodguiltiness and fears
    No vengeance.

The atmosphere of ‘private execution’ which characterised the Homeric age
and the earliest stratum of the pollution era is faithfully retained.
Orestes is the sole avenger: without him there is little hope of
vengeance. Electra may strike, in the last resort, but not before she has
despaired of the return of Orestes. The deed of blood is calmly executed
by Orestes, whose conscience is salved by the command of Apollo. The
Chorus do not condemn the act. They have looked forward to it.[16] Thus
they say[17]:

    Behold they come, they come!
    His red hand dripping as he moves
    With drops of sacrifice the war-god loves.
    My ’wildered heart is dumb.

The desire of Electra that Aegisthus should not be buried is clearly
derived from the historical custom, for which Plato is our sole
authority,[18] of refusing burial to wilful murderers and especially to
kin-slayers[19] such as Aegisthus was. The Homeric account[20] is here of
necessity abandoned. Electra says[21]:

                  Kill him at once!
    And, killed, expose him to such burial,
    From dogs and vultures, as beseemeth such.

The Sophoclean Erinnyes are even more ‘Homeric,’ and therefore less
‘tragic,’[22] than the Aeschylean Erinnyes. In Sophocles we do not find
any reference to the Erinnyes of the slain Clytaemnestra. This is perhaps
because he conceived Orestes’ act as clearly and unmistakably the act of
a just avenger. Hence Electra prays[23]:

    And ye, Erinnyes, of mortals feared,
        Daughters of Heaven that ever see
        Who die unjustly,
    Avenge our father’s murder on his foe.

But Sophocles shares with his brother-dramatists two ideas which we have
ascribed[24] to post-Homeric times, namely the notion of an ancestral
curse and the notion of the blood-thirst of the dead, as is manifest from
the following lines[25]:

    The curse hath found, and they in earth who lie
        Are living powers to-day;
        Long dead they drain away
    The streaming blood of those who made them die.

To the post-Homeric period we have also ascribed[24] the custom of
μασχαλισμός, or mutilation of the limbs of the dead, which is mentioned
in this play,[26] as it also is in the _Choephoroe_ of Aeschylus.[27]
The ‘sacrifice’ of Iphigeneia is also referred to in the _Electra_. It
is not described in detail, nor is it boldly emphasised, as it is in
Aeschylus.[28] But it is mentioned as an argument by which Clytaemnestra
seeks to seduce Electra from her desire for vengeance.[29] Since
Agamemnon was a murderer, she argues, surely his death need not be
avenged. In her reply, Electra utters a sentiment which at first sight
seems inconsistent with her general attitude in the play; she says[30]:

    But grant thy speech were sooth, and all were done
    In aid of Menelaus: for this cause
    Hast thou the right to slay him? What high law
    Ordaining? Look to it, in establishing
    Such precedent, thou dost not lay in store
    Repentance for thyself. For if by right
    One die for one, thou first wilt be destroyed
    If Justice find thee.

What, we may ask, is the meaning of the ‘precedent’ to which Electra
refers? Does it mean that no individual should have the right to take
human life? Does it imply a condemnation of ‘private vengeance’ as
distinct from social justice? We do not think that the ‘precedent’
which Electra mentions refers to private vengeance. We have seen[31]
that, amongst the Homeric Achaeans, there was a distinction, vague and
unwritten, but none the less real, which was enshrined in a public
opinion of the caste, the distinction between murder and vengeance. The
act of Agamemnon in sacrificing Iphigeneia (if we suppose for the moment
that the sacrifice actually took place) would not have been regarded
by the Achaeans as an act of murder. But the act of Clytaemnestra in
slaying her husband would have been, and was, regarded as murder, and
Orestes was conceived as a just avenger. Hence, in this play, when
Clytaemnestra sets herself up as an isolated authority on questions of
right and wrong in matters of homicide, she is violating what must have
been an established precedent in the Achaean society. It is, we think,
to some such precedent as this that Electra here refers. To suppose that
Electra is referring to the precedent of ‘private vengeance’ would be to
attribute an inconsistent and illogical character to Electra, for is she
not whole-heartedly scheming to accomplish what, on this hypothesis, she
verbally condemned?

Finally, Sophocles does not attribute to Electra, or perhaps even to
Pylades, any actual share in the act of vengeance. In this he follows
Aeschylus, whose object it was to make Orestes the central figure in
the drama. Euripides, however, we shall see, suggests that the act of
vengeance was, so to speak, ‘partitioned’ amongst three avengers. Both
Electra and Pylades have to suffer punishment, as well as Orestes.
Perhaps Euripides is following a legend which, while admitting a degree
of guilt, sought to lessen the guilt by dividing it. This version
Sophocles does not follow, nor does Aeschylus. But Pylades had been too
long and too well established in the post-Homeric story to be omitted or
ignored. He had come into the story almost as early as Apollo, for he is
mentioned in a cyclic epic[32] by Agias of Troezen which belongs to the
middle of the eighth century B.C. The connexion of Orestes with Pylades
and with Phocis, rather than with Athens, belongs, probably, to the
Phocian variant of the Oresteian story. This version was older, we think,
than the Argive legend which we shall find in the _Orestes_ of Euripides,
and it was also probably older[33] than the Attic legends which
emphasised the trial of Orestes at the Areopagus. The Attic legend-makers
should at least have followed the Homeric saga which suggested the
connexion of Orestes with Athens before his act of vengeance; and if
neither they nor the Attic dramatists refer to such a connexion, this
must be attributed to the fact that the famous friendship of Pylades
and Orestes and the famous purgation of Orestes at Delphi had in course
of time obscured, in a fusion of legends, the previous association of
Orestes with Athens, a fact which Apollo had not forgotten when he
directed him to that State for trial and acquittal.


THE ‘KING OEDIPUS’

We have already mentioned[34] the Homeric legend of Oedipus, and the
difficulties which it presents to the legal analyst. Homer[35] appears
to think it strange that a parricide should have continued to rule in
his native land. He hints that the dreadful deed was punished in the
first instance by pain and suffering, and later by ‘pains full many’
such as the Erinnyes of a mother bring to pass. The story is complicated
by the addition of the crime of incest, just as the story of Orestes
is, to a less extent, complicated by the addition of adultery. We have
suggested[36] that in pre-Homeric times the deed of Oedipus was already
regarded, by Pelasgians, as at least involuntary parricide, and perhaps
also, because of the provocative action of Laius, as quasi-involuntary
homicide; and we have attributed the wonder which is expressed by Homer
at Oedipus’ continued rule in Thebes to the absence, amongst the Achaean
caste, of the distinction between voluntary and involuntary slaying.
In post-Homeric times the notion of an ancestral curse was added to
the story, and also, if it was not already in the legend, the idea of
provocation on the part of Laius. Furthermore, the pollution doctrine
was applied to the legend, and Apollo was appealed to as the sole judge
of guilt, as he was, we think, appealed to in the Phocian legend of
Orestes.[37] It is strange that Attic legend-makers did not seek to
connect Oedipus with the Areopagus court, seeing that he was said[38] to
have been buried in Attica and to have been given a refuge there before
his death.

We have seen[39] that Orestes was tried by the Areopagus, on a plea
either of justifiable or of quasi-involuntary matricide, according to the
different versions of the Attic legends. In the ‘second Attic legend,’
which is based on the plea of quasi-involuntary matricide, for which
Orestes claimed that the penalty had already been paid, the Areopagus
functions as a ‘court of reconciliation’ rather than as an ordinary
homicide court. In the case of Oedipus there is a suggestion, in the
_Oedipus Coloneus_,[40] of an informal trial of Oedipus on the part
of Theseus, King of Athens. It was probably a legendary reference to
his trial by Theseus which prohibited any connexion of Oedipus with the
Areopagus.

In the present play Apollo threatens to send a plague upon Thebes if the
Thebans do not search for and punish the murderer of Laius. The penalty
which is mentioned by the oracle is of a general kind, that is, it does
not definitely imply that the crime was parricide—such an implication
would have militated against the development of the drama—but it assumes
that the slaying of Laius was an act of wilful murder. Thus Kreon
says[41]:

    Sovereign Apollo clearly bids us drive
    Forth from this region an accursèd thing
    (For such is fostered in the land and stains
    Our sacred clime), nor cherish it past cure ...
    By exile or by purging blood with blood,
    Since blood it is that shakes us with such storm.

It is of course possible to maintain that a penalty which permitted the
option of death or exile was the punishment of parricide in the early
stages of the ‘pollution system,’ though such an option was not permitted
for kin-slaying in Attic law. We have suggested[42] that it was not the
pollution doctrine which of itself abolished private execution, and exile
was permitted, as we think,[43] until private execution was abolished. It
is therefore legally possible that a legend of the early pollution era
contained such an oracular penalty for parricide, in days when political
synoekism had not yet established State execution. We might be inclined
to interpret in this way the description of the oracle which is given—but
only at the end of the play!—by Oedipus himself[44]:

    His sacred utterance was express and clear,
    The _parricide_, the unholy, should be slain;

and he requests Kreon to execute the penalty[45]:

    Fling me with speediest swiftness from the land
    Where nevermore I may converse with men.

But we cannot suppose that the word ‘parricide’ which is here used
by Oedipus was actually mentioned by the oracle, as, if it had been,
the greatest tragedy of ancient literature, the _King Oedipus_ of
Sophocles, could never have been written. The whole dramatic evolution
of the plot depends on the suppression of the murderer’s identity. The
Thebans would not have understood such a description, seeing that, so
far as they knew, Laius had no living child. Jevons refers to a dramatic
characteristic which may help to explain this difficulty, namely the
‘irony of Sophocles.’ He says[46]: ‘For the full appreciation of the
irony of Sophocles ... it must be remembered that whereas the torturing
contrast between the condition of Oedipus as he fancies it, and as
it really is, is only discovered by Oedipus at the last moment, this
contrast is perpetually present from the beginning to the spectator.’
Oedipus implies that Kreon had used the word ‘parricide’ when speaking to
him in connexion with the oracle. When Kreon replies[47] ‘Ay, so ’twas
spoken,’ are we to interpret the answer literally? If Kreon had known
the truth, he would have been compelled by religious fear to declare it.
The character of Kreon, as revealed in the _Oedipus Coloneus_ and in the
_Antigone_, is that of a loyal and religious citizen rather than that
of a loyal kinsman. Hence we must either suppose that this reference
to parricide is a dramatic slip, an instance in which the Sophoclean
‘irony’ overreached itself, or we must suppose that Oedipus and Kreon
have incorrectly interpreted the oracle in the tragic excitement brought
about by the dramatic developments of the plot. From the legal standpoint
we consider it most probable that the oracular declaration of the penalty
was of a non-committal character. Hence it is that when Kreon discovers
the true facts of the case he decides to consult the oracle again before
taking any action. To Oedipus’ request to drive him from the land, he
replies[48]:

    Doubt not I would have done it, but the god
    Must be inquired of, ere we act herein....
                      In such a time
    We needs must be advised more perfectly.

Does Kreon then anticipate that the second consultation of the oracle
will elicit a severer penalty, namely death without the option of exile,
which was the historical penalty for parricide, or is he well aware that
the act of Oedipus, committed in ignorance of Laius’ identity, was,
at worst, wilful murder, and, if he hesitates to decree a penalty of
perpetual exile, is it because he is aware that the act was provoked by
Laius and was therefore quasi-involuntary? The answer to these questions
cannot be found in the _King Oedipus_ drama. The play ends while the
homicide penalty of Oedipus is still undecided. We do not connect with
the death of Laius the self-blinding of Oedipus or the suicide of
Jocasta. These events, which are referred to explicitly or implicitly by
Homer,[49] we connect rather with the crime of incest. The legal analysis
of the story is complicated not only by the presence of this crime, but
also by the post-Homeric doctrine of the ancestral curse in the house of
Laius. But we hope to elicit from the companion play, the _Oedipus at
Colonus_, a more satisfactory account of the legal aspect of the legend.


THE ‘OEDIPUS AT COLONUS’

Already, in the preceding play, we have been informed by Oedipus that his
act was not only not wilful parricide but was not even wilful homicide.
Describing the fatal scene, Oedipus said[50]:

    When I drew near the cross-road of your tale
    A herald, and a man upon a car
    Like your description, there encountered me.
    And he who led the car and he himself,
    The greybeard, sought to thrust me from the path.
    Then in mine angry mood I sharply struck
    The driver-man who turned me from the way;
    Which when the elder saw he watched for me
    As I passed by, and from the chariot seat
    Smote full upon my head with the fork’d goad;
    But got more than he gave, for by a blow
    From this right hand, smit with my staff, he fell,
    Instantly rolled out of the car supine.

When the full revelation of his accursed destiny came home to Oedipus,
he was so overwhelmed with grief, remorse and terror that he became for
the time insane. But in the _Oedipus Coloneus_ he has once more regained
his reason. He argues[51] with himself and with others as a rational
Theban or Athenian of the historical era. What, he asks, was his crime?
The guilt lies with the Curse and the Fates who accomplished it. Has he
committed incest? No, for he did not know that his wife was his mother.
Why, therefore, should he be punished? One crime only has he committed,
yet not with malice and deliberation. He had slain an old man ‘with dark
locks just sprinkled o’er with grey,’[52] and this old man was no slave
or serf, but a free man and a prince. For this deed, according to Greek
law, Oedipus must become an exile. But was the exile to last for ever?
We have quoted from Plato[53] what we believe to have been the Greek
legal penalty for slaying in a passion, namely a period of exile which
sometimes extended to two, and sometimes to three, years, according to
the degree of malice in the act. But we have argued that in such cases
the duration of the exile depended in theory, if not in practice, on
the consent of the relatives of the slain. Now Plato says that in no
circumstances, not even in self-defence, was it lawful for persons to
slay their parents.[54] Hence the legal position of Oedipus is a complex
one. Objectively, he was guilty of wilful parricide; subjectively, he
pleaded guilty to extenuated homicide. Such complex issues were not
provided for in ancient law, not even in Plato’s penal code.

If therefore we find that Euripides[55] speaks of Oedipus as ‘imprisoned’
in Thebes, and that Sophocles speaks of Oedipus as an exile in Athens,
and mentions also a projected arrangement by which Oedipus might live
near Thebes—not in it, but just outside it[56]—may we not see in these
accounts the efforts of legend-makers to keep their creations in harmony
with legal facts, and may we not suppose that their failure to agree with
one another, and especially with the Homeric narrative, was due to the
twofold aspect, subjective and objective, of the deed of Oedipus? The
Homeric account of the subsequent rule of Oedipus at Thebes could only
be retained, in the ‘pollution’ era, by assuming that his act was not
parricide, but homicide, that it was not wilful, but quasi-involuntary,
and that the kinsmen of Laius unanimously consented to his return from
temporary exile. If his act was conceived, objectively, as parricide, it
would have been necessary to assume (1) that Laius ‘forgave’ him before
he died and (2) that his kinsmen consented to his return. But no legend
suggests that Laius forgave his slayer. Furthermore, the legends seem to
have emphasised the fact that the kinsmen of Laius were not unanimous
in consenting to the return of Oedipus. Hence the Homeric story of
his continued existence at Thebes had, in the ‘pollution’ era, to be
abandoned.

In the _Oedipus Coloneus_ Oedipus protests against his continued
banishment from home, because, he maintains, his deed was involuntary.
Thus, he says[57]:

                                  If,
    Born as I was to misery, I encountered
    And killed my father in an angry fray,
    Nought knowing of what I did or whom I slew,
    What reason is’t to blame the unwitting deed?...
                                  If to-day,
    Here now, one struck at thee a murderous stroke,
    At thee,[58] the righteous person,—wouldst thou ask
    If such assailant were thy sire, or strike
    Forthwith? Methinks, as one who cares to live,
    You would strike before you questioned of the right,
    Or reasoned of his kindred whom you slew.
    Such was the net that snared me: such the woes
    Heaven drew me to fulfil. My father’s spirit,
    Came he to life, would not gainsay my word.[59]

Kreon, coming to Athens from Thebes, invites Oedipus to his home, not
only on his own behalf, but on behalf of the citizens of Thebes[60]:

                          But I am sent to bring
    By fair persuasion to our Theban plain
    The reverend form of him now present here....
                          All Cadmus’ people _rightfully_
    Invite thee with one voice unto thy home.[61]

But Oedipus does not regard this attitude as sincere. Previously, Ismene,
his daughter, had warned him that Kreon would come:

    To set thee near their land, that thou mayst be
    Beyond their borders but within their power.[62]

In the opinion of Ismene, Oedipus can never return to his home; she
says[63]:

    The blood of kindred cleaving to thy hand,
    Father, forbids thee.

This statement interprets the act of Oedipus as parricide rather than as
homicide, for, assuming that the act was quasi-involuntary, the removal
of pollution required, in the former conception, the forgiveness of the
dying, whereas in the latter conception it required only the consent of
the relatives to ‘appeasement.’ Ismene implies that, whatever attitude
Kreon and the other relatives of Laius adopt, Oedipus can never return,
because Laius has not forgiven his slayer.

Kreon betrays a similar attitude of mind when he says[64] to Theseus
that he did not think the citizens of Athens would give refuge to ‘a man
incestuous and a parricide....’ He says:

    Such was the mount of Ares that I knew ...
    That suffers no such lawless runaways
    To haunt within the borders of your realm.

We have seen that in international Greek law exile was not permitted
for wilful parricide or, more generally, for wilful kin-slaying, and
therefore no State could open its doors to such slayers. But for
involuntary or extenuated kin-slaying exile was recognised by law, and
therefore whenever a foreign kin-slayer applied to be admitted as an
exile into any State it was necessary to hold an inquiry, in order to
discover whether his deed of blood was voluntary or involuntary, before
admitting him to civic and religious communion. The attitude of Kreon in
the last speech is, we believe, a rhetorical exaggeration, for it implies
that in his opinion Oedipus was a wilful kin-slayer of full guilt, and it
is legally incompatible with his previous proposal to escort Oedipus to
his home. Polyneices, the son of Oedipus, promises[65] the same boon, if
Oedipus will only forgive him and help him in his conflict with Eteocles.
But Oedipus refuses to forgive his unfilial son and launches his curse
against him, because he and his brother and his uncle are the cause of
his continued exile[66]:

    ’Tis thou hast girt me round with misery;
    ’Tis thou didst drive me forth, and driven by thee
    I beg my bread, a wandering sojourner.

Thus, if we make due allowances for rhetorical deceptions, we may
conclude that, except in the mind of Oedipus himself, his act was
regarded as voluntary rather than as involuntary: the oracle of Apollo
took, on the whole, the same view, but made some allowance for the
element of provocation in the act. Long before, it had foretold that
Oedipus would not return to reign in Thebes or to die there, but that in
Athens he would find rest and asylum. Oedipus quotes the oracle[67]:

              When I should reach my bourne,
    And find repose and refuge with the Powers
    Of reverend name, my troubled life should end
    With blessing to the men who sheltered me
    And curses on their race who banished me.

There is reference in this quotation to a shrine of the Semnai Theai
in the deme Colonus. It was at this shrine that Oedipus appeared as
a suppliant for asylum and it was here that he had to submit to a
ceremonial of ‘cleansing’ which we have already referred to[68] as a
minor local purgation. This ceremonial was probably applied to all
foreign homicide exiles who claimed the privilege of residing in a State.
Orestes does not require it when he arrives at Athens, because he has
not yet been tried and convicted, because Apollo has commanded him to go
to Athens, and because Apollo has purged him of his guilt. The purgation
ceremony in the _Oedipus Coloneus_ was similar to that which Croesus
administered to the Phrygian kin-slayer, as Herodotus[69] records. We
have said[70] that, in cases of kin-slaying, some kind of inquiry, an
informal trial, was held to investigate the question of guilt. The
Athenians[71] here do not at first accept the plea of Oedipus, but refer
the matter to the decision of Theseus, King of Athens. It is ultimately
upon the word of Apollo that Theseus grants him protection.[72]

Within the precincts of the shrine of the Semnai Theai, there was, in
the time of Pausanias, a tomb which was called the tomb of Oedipus.
Pausanias[73] does not believe the story of Sophocles that Oedipus died
and was buried in Attic soil. Does not Homer,[74] he argues, prove that
Oedipus was buried at Thebes? Yet the tomb of Oedipus was to be seen
in the shrine of the Semnai! Pausanias inquired about this curious
contradiction, and he discovered, as he thinks, the solution. The bones
of Oedipus were, he says, transferred from Thebes to Athens! Nothing
could better illustrate the credulity of the ancients and their want of
historical logic. Oedipus was, in all probability, buried at Thebes.
According to Homer,[75] he never left that city. But the doctrine of
pollution, which was applied retrospectively to Oedipus, insisted that
he did leave Thebes and that he could never return to it. Plato implies
that a person who was stained with kindred bloodshed—even extenuated
kin-slaying—could never be buried in the tomb of his fathers. To Corinth
Oedipus did not return. To Phocis he could not go, for it was there
that the deed of blood was wrought, and we have seen[76] that a foreign
slayer could never return, whether his act was voluntary or involuntary,
to the State in which the act occurred. As a blind exile could not be
expected to go very far from home, the natural place for the exile of
Oedipus was the Attic land beyond Cithaeron. Thither legend brought him,
to constitute a further link in the eternal friendship between Thebes
and Athens! In the time of Demosthenes,[77] just before the battle of
Chaeronea, the Athenian reception of Oedipus was put forward as an
argument for the alliance of Thebes and Athens. In Attica legend said
that he was buried, and his tomb was there for everyone to see. But he
could not have been buried in Attica, since, according to Homer, he was
buried at Thebes. To reconcile Homer with later legend, it was necessary
therefore to suppose that the bones of Oedipus were transferred from
Thebes to Athens. Pausanias, however, unfortunately failed to see that,
according to this hypothesis, the whole structure which post-Homeric
legends of the ‘pollution’ era built round the name of Oedipus topples
to the ground. The explanation lies in the evolution of the legend. The
legend which Sophocles followed is absolutely incompatible with Homer;
and this was the ordinary and, so far as we know, the only legend of the
death of Oedipus which existed in post-Homeric days.


THE ‘ANTIGONE’

In the _Antigone_ drama, which is rightly famous not only for its
dramatic art, but also for the problems which it presents and the
conflicts of human passion which dominate it, there is no plain, direct
and obvious matter for the student of homicide law. But there are points
of interest on the borderland of homicide which cannot be entirely
omitted. It is easy for the adverse critic to assert that in this play
we find reference to civil war, to suicide, to judicial execution, and
to quarrels about burial, but we find no reference to homicide. We
venture to suggest that fratricide in civil war, judicial executions of
which the justice is called in question, and suicide, are very closely
related to homicide by the similarity, if not the community, of their
nature. Lysias[78] tells how, in the political crises at Athens, men
were prosecuted, sentenced, and executed as murderers who had merely
acted as informers, or as we should say ‘secret service’ agents, in
regard to that vague political crime which is called treason. According
to Pausanias,[79] the Athenians accepted as a foundation legend for the
Delphinium homicide-court the story that Theseus pleaded justification
for having slain, in civil war, Pallas and his sons who were his kinsmen.
Again, suicide and homicide, as they appear in drama, may be closely
related, since Teucer was punished by his father, Telamon, because of
the suicide of his half-brother, Ajax.[80] He was even said to have been
tried for this deed, for the story of his trial is solemnly told by
Pausanias[81] when he is describing the origin of the Attic murder-court
Phreatto. In the _Antigone_ the judicial execution of Antigone by Kreon
is assailed as murder by his son, Haemon. The messenger describes how
Haemon attempted to slay Kreon in revenge[82]:

                But with savage eyes the youth
    Glared scowling at him, and without a word
    Plucked forth his two-edged blade. The father then
    Fled and escaped: but the unhappy boy,
    Wroth with himself, even where he stood, leant heavily
    Upon his sword and plunged it in his side.

What, we may ask, caused Haemon to commit suicide? We admit that his
love for Antigone and the grief which he felt at her loss were essential
causative factors; but we also feel that there was present in his heart
an overwhelming fear that if he survived he would slay his father. We
think that it was partly in order to avoid this horrible deed that he
killed himself, just as in Homer,[83] Phoenix, through fear of parricide,
fled from his home, his country and his kindred. The fact that even for
Kreon the execution of Antigone was not merely repugnant to sentiment
but was actually a source of conscience-conflict may be inferred from
the extraordinary manner in which he caused her to die. He tells the
Chorus[84]:

    Where human footstep shuns the ground
    I’ll hide her in a cave-like vault,
    With so much provender as may prevent
    Pollution from o’ertaking the whole city.

He places Antigone in a cave and leaves with her a little food. In his
effort to avoid kin-bloodshed he proposes to starve the girl to death!
Nature and Fate can take the guilt. This procedure of Kreon cannot have
been entirely due to the aversion which human nature, even in very
primitive societies, felt towards the shedding of kindred blood.

In Sophocles, Kreon is more devoted to the city than to his kindred.
Otherwise he would have permitted the burial of the dead Polyneices
without waiting for the compulsion of circumstances. Yet we feel that if
the rebellious subject who sought to bury Polyneices had not been akin
in blood to Kreon, he would have been immediately executed.[85] Hence
we suggest that the starving to death of Antigone without bloodshed, in
order to avoid pollution, implies a latent fear in the mind of Kreon lest
her execution might be a judicial murder, for it was when the victim was
a kinsman that the religious aspect of execution was most formidable and
that the least doubt about its justice produced the greatest scruples.
It is of course open to us to suppose that we have in this story a
fusion of ideas which are derived from different atmospheres, and that
in course of time pollution ideas became grafted upon an earlier story
which represented the peculiar nature of this execution of Antigone as
entirely due to human psychology and tribal custom. But, in the absence
of any evidence for the existence of such a legend in early times, we may
conclude that the act of Kreon is presented in this drama as an act which
is open to the suspicion of being a judicial murder. For such murder
there was no penalty in law or custom while the perpetrator remained in
power, and the avenger was impotent to avenge. Teiresias the prophet
takes this view of the matter and forebodes a terrible reckoning. He
includes this execution in his recital of the crimes of Kreon when he
says[86]:

    Not many courses of the racing sun
    Shalt thou fulfil, ere of thine own true blood
    Thou shalt have given a corpse in recompense
    For one on earth whom thou hast cast beneath,
    Entombing shamefully a living soul.

The whole plot of the _Antigone_ really turns on the question of the
burial of Polyneices, just as that of the _Ajax_ depends upon the
problem of the burial of Ajax. Eteocles and Polyneices had fallen in
mutual combat as leaders in a war between the Argives and the Thebans,
a combat which, from the existence of blood-relationship between the
leaders, assumed the external aspect of civil war. The problem of guilt
is obscured by political complications. If we inquire whether the mutual
slaughter of these two brothers was culpable fratricide, we must answer
that, in the circumstances of the case, it seems obvious that either
both slayers wore guilty or that both were justified. Theseus was
justified,[87] according to legend, in the slaying of the Pallantidae,
and, according to Kreon, in the _Antigone_, Eteocles was justified in
slaying Polyneices, for he commands that Eteocles should be buried with
full honours—and we know that culpable kin-slayers could not be buried.
Polyneices, however, was not, in Kreon’s view, justified in slaying
Eteocles. Here are Kreon’s words[88]:

                              ... The man,
    Eteocles—I mean—who died for Thebes ...
    Shall be entombed with every sacred rite
    That follows to the grave the lordliest dead.
    But for his brother who, a banished man,
    Returned to devastate and burn with fire
    The land of his nativity, the shrine
    Of his ancestral gods ... for Polyneices
    This law hath been proclaimed concerning him:
    He shall have no lament, no funeral,
    But lie unburied for the carrion fowl
    And dogs to eat his corse, a sight of shame.

The law which is here mentioned is not an archaic fossil recovered from
an antique past. It is the law of ‘the mortal lawgiver’ which Plato
gives and which we have already described.[89] Its application in this
context implies that Polyneices was guilty of culpable fratricide, which
in the special circumstances of the case has affinities with the crime
of treason. Plato[90] gives a law which confirms this supposition. ‘If a
brother,’ he says, ‘shall, in his own defence, during a fight occurring
in a sedition, kill a brother while warding off the party who first had
recourse to violence (τὸν ἄρχοντα), let him be considered free from
guilt as he is who kills an enemy.’ In the laws of Dracon, also, as we
know from the restored inscription and from Demosthenic quotations, the
category of justifiable homicide included the slaying of the ‘first’
aggressor and of the ‘unjust’ aggressor.[91] According to our theory
that Dracon codified existing laws but did not invent new laws, it would
follow that Plato here refers to a very ancient and for a long time
unwritten law of the Ephetae and the Exegetae. The attitude of Kreon to
Eteocles is precisely that of the Platonic legislator. His attitude to
Polyneices seems also, at first sight, to be legally correct, because
Polyneices was technically _the unjust aggressor_. But the tendency of
legislation concerning such cases is to condemn too swiftly, without
due consideration and with a superficial examination of the facts. Such
legislation assumes that a man must be either right or wrong, either
wholly innocent or wholly guilty. Now we find it very difficult to
conceive Polyneices as guilty of wilful fratricide. Before he became an
‘aggressor’ he had been banished from his country, because he refused
to divide the throne with his brother Eteocles. Was not his expulsion
a prior act of aggression? Perhaps therefore he can be regarded as
fully justified[92] if one goes far enough back in one’s analysis of
‘aggression.’ But on such questions ‘justice’ is frequently a crude
political hotchpotch even in the most civilised communities. We suggest
that it is against such political ‘justice’ that Antigone in the play
revolts. It is frequently asserted[93] that this play symbolises a
conflict between religion and civil power; that Antigone and Teiresias
champion the laws of the gods, while Kreon defends the laws of the State.
But in ancient Greece there was ordinarily no distinction between Church
and State. The State was identified with its gods. Treason was a kind
of sacrilege; sacrilege was a form of treason. Again, it may be argued
that the conflict between Kreon and Antigone symbolises an opposition
between the State law which refused to traitors the privilege of burial,
and the ancient Clan-law, according to which the burial of a dead kinsman
was a religious duty, and its neglect a dangerous ‘sin.’ We regard this
hypothesis as much more reasonable, but if it be pressed to its logical
conclusions it compels us to see in the _Antigone_ an exaltation of
tribalism over State power, or otherwise to attribute moral weakness
to Antigone. But we suggest that tribalism had evolved the custom of
refusing burial to traitors long before the advent of centralised civic
government. In this respect, therefore, tribal law and State law were in
unison, not in conflict. Hence this hypothesis compels us to assume that
in this play there is an exaltation of moral weakness. There are passages
in the play which support this interpretation. Thus Antigone says[94]:

    But had I suffered my own mother’s child,
    Fallen in blood, to be without a grave,
    That were indeed a sorrow.

But, a few lines earlier,[95] she implies that there is something
hideously novel and unorthodox about the edict of Kreon:

    Nor thought I thy commandment of such weight
    That one who is mortal thus could overbear
    The infallible unwritten laws of Heaven.

Haemon, too, implies[96] that there is something very arbitrary in
Kreon’s proclamation. All the citizens of Thebes, he says, repudiate the
guilt of Antigone:

    She perishes for a most glorious deed,
    Who when her own true brother on the earth
    Lay weltering after combat in his gore,
    Left him not graveless for the carrion fowl
    And raw-devouring field-dogs to consume—
    Hath she not merited a golden praise?

Hence we think that the conflict in this drama lies rather between human
nature and human reason on the one hand and the arbitrary tyranny of
civic governments in political legislation and administration on the
other. Antigone protests against the decree which declared her brother
at once a traitor and a fratricide of full guilt.[97] If Polyneices
had slain Eteocles and had become in his stead the ruler of Thebes,
how different would Kreon’s appreciation of the facts have been! It is
obvious that sedition, faction, and civil war, whether in ancient Greece
or in modern Ireland, produce a contempt for civic law because of the
despotic dogmatism which regards the same individual as now a patriot and
now a traitor, now a hero and now a villain, according to the momentary
swing of a political pendulum or the varying strength of political
parties.

Finally, we may point out that in this play there is a veritable
epidemic of suicide. But it is not suicide of the ordinary ignoble kind.
There is a clear distinction, in the mind of the dramatist, and in the
facts, which makes such self-slaughter more akin to sacrifice. Haemon,
Eurydice, and Antigone one by one put off ‘this mortal coil.’ It is only
when it is too late that Kreon is brought to see the selfish obstinacy of
his point of view. The play ends with a warning against impious pride.
But the gods have punished the humble with the proud! The legal analysis
of suicide of this kind is rather difficult and unsatisfactory, but we
shall offer some further remarks upon the subject in connexion with the
following play, the _Ajax_, in which suicide forms a prominent feature of
the plot.


THE ‘AJAX’

When the council of the Achaean chieftains on the plains of Troy decided
to bestow upon Odysseus the arms of Achilles as the prize of martial
valour, Ajax, the rival claimant for the prize, was overwhelmed with
jealousy and wounded pride, and he resolved to slay Odysseus and, with
him, other Achaean chieftains. This resolution he fortunately failed
to execute, not through any fear of the consequences of his act, nor
yet through moral or legal scruples, but simply as a result of the
intervention of Athene, who directed his murderous hand against a herd
of cattle and ‘mesmerised’ him into believing that those cattle were his
human enemies. This fictitious imaginary slaying of men cannot easily
be classified from the standpoint of historical law. Are we to regard
Ajax as a plotter of murder or a contriver of murder or as guilty of
‘attempted murder’?

We have already seen that in historical Greek law[98] the contriver of
murder and the actual murderer were more or less identical, and were
tried by the same Areopagus court. Now, plotting to kill which did not
succeed but which merely resulted in wounding would have been regarded
as ‘malicious wounding’ (τραῦμα ἐκ προνοίας), whereas such plotting
without wounding was ‘attempted murder’ (βούλευσις). From the probable
fact[99] that the Palladium court tried cases of βούλευσις in the time of
Aristotle, we have inferred that this offence was punished by temporary
banishment; for the connexion of βούλευσις with the Palladium implies
that the degree of guilt was regarded as more or less identical with
that of manslaughter, even though the nature of these offences is very
different. Now we have seen that amongst the Achaeans of the Homeric age
there was no discrimination in regard to the penalties for murder and for
manslaughter: but are we also to assume that there was no distinction
between murder and plotting-without-wounding (βούλευσις)? The act of
Ajax, as it is described in this Sophoclean drama, was, according to our
definition of the words, an instance of βούλευσις. Now it is possible
to maintain that in this play Ajax is regarded as a murderer, and that
he would have been punished as a murderer if his act of suicide had
not rendered it impossible to carry out such punishment. The fact that
he slew some herdmen, with the cattle, is not, we think, of any legal
importance, though the Chorus happen to mention it, for these herdmen
were either slaves or inferior serfs whose death was not regarded as
murder. In the _King Oedipus_ we are told[100] that Oedipus slew all
the attendants of Laius at the famous Phocian cross-roads, but their
death was unavenged and for their death the Delphic oracle demanded no
punishment. In the _Ajax_ the Chorus proclaim the death penalty for
Ajax[101]:

    The man will die, disgraced in open day,
    Whose dark-eyed steel hath dared through mad-brained error,
    The mounted herdmen with their herds to slay.

Again it is possible to maintain that the attempt of Ajax was also, in
a certain sense, treasonable, for it was an insult and a danger to the
whole Achaean army. Now, the penalty for treason, we have seen,[102]
was ‘collective,’ that is, it applied to the family of the traitor, not
merely to himself, until the fourth century B.C. It is thus perhaps that
we must explain the attempt which was made by the Achaean army to slay
Teucer, the half-brother of Ajax, as the messenger records[103]:

    They swarmed around him and with shouts of blame
    From each side one and all assaulted him,
    As brother to the man who had gone mad
    And plotted ’gainst the host—threatening aloud
    Spite of his strength he should be stoned and die.

But they did not slay Teucer, despite their threats, and this fact
suggests that βούλευσις (equated with murder) rather than treason was the
crime which they imputed to Ajax: for the penalty for murder was rarely
collective. In the following dialogue between Teucer and Menelaus, Ajax
is called a murderer[104]:

    _Men._: Just, that my murderer have a peaceful end?
    _Teu._: Thy murderer? Strange to have been slain and live!
    _Men._: Yea, through Heaven’s mercy. By his will, I am dead.

Yet we cannot infer from the suggestion that the penalty of death
would have been inflicted upon Ajax had he lived to suffer it, that
such was the penalty for βούλευσις in historical Attic law. It is much
more probable that Sophocles is here attributing, by an archaism, an
absence of discrimination between murder and βούλευσις to the Homeric
society.[105]

Teucer foresees that when he returns to Salamis he will be banished by
his father, Telamon, because of the death of Ajax. Addressing the corpse
of Ajax, Teucer says[106]:

    Will Telamon, my sire and thine, receive me ...
    Returning without thee?
    ... I shall leave my land a castaway,
    Thrust forth an exile and proclaimed a slave.

We have quoted[107] from Pausanias the legend that the Attic court of
Phreatto was first founded when Teucer pleaded innocence for the death
of Ajax. Apart from the impossibility of assuming any real historical
connexion between Teucer and Phreatto, we may naturally ask, why was
it that Teucer was presumed to have been guilty of bloodshed, and what
degree of guilt was attributed to him? We cannot very logically apply to
Teucer the principle which was enunciated by a Delphic oracle which we
have already mentioned[108]: ‘Thou, who standing near a comrade being
killed hast not defended him, hast gone not pure away.’

Yet such oracles suggest that Teucer incurred some guilt through not
having protected Ajax from himself. The only explanation which we can
offer for the facts is this: Teucer was regarded by Telamon as partially
culpable in regard to the death of Ajax. In Greek law, it was necessary
for the accused to prove his innocence, and Teucer could not prove it.
Ajax had died in a solitary place; but he was more or less insane, and he
should not have been left without a protecting escort.[109] The guilt of
Teucer, being of a minor kind, was connected with that of manslaughter.
The court of Phreatto was based on the principle that the slayer who was
guilty of involuntary homicide could not have returned to his native land
until he had appeased the relatives of the slain. Therefore Telamon,
the father of Ajax, was represented in legend as having refused to
permit Teucer to land in Salamis. The fact that Ajax was a kinsman of
Teucer causes further complications. But in the event of minor pollution
the legal aspect of such a case approximates to that of ordinary
manslaughter. We have seen that the Achaeans punished kin-slaying by
death and that they did not distinguish between major and minor degrees
of guilt. But this story of Teucer is not, we think, of Achaean origin:
it was attributed to an Achaean by post-Homeric legend. We have seen[110]
that in tribal society, before political synoekism, the penalty for
kin-slaying was exile, and that tribal law discriminated meticulously
between varying degrees of blood-guilt. Thus, the story of the banishment
of Teucer can only be made intelligible by being considered in its
obviously archaic atmosphere.

It remains for us to discuss the dispute which arose concerning the
burial of Ajax in this play. Ajax has committed suicide, but there are
different kinds of suicide. Plato[111] includes under the category of
kin-slaying the act of a person who ‘by violence deprives himself of
his lot of destiny, without being compelled either by a verdict of the
city which decrees it, or by a very painful and unavoidable misfortune
which has befallen him, or by being involved in a disgrace which cannot
otherwise be tolerable, but through sheer indolence, weakness and
cowardice.’ Such persons must not, says Plato, be buried in the family
tomb, or with funeral honours, or where anyone else has been buried. Now,
the case of Ajax might easily have been included in one or other of the
categories of suicide which Plato regards as honourable. Because of his
βούλευσις he probably regarded himself as under sentence of death: he was
insane with grief and wounded pride. No one could accuse him of cowardice
or weakness. Moreover, Plato admits that some kind of burial was accorded
to all suicides. In the _Ajax_ some Achaeans demand the burial of Ajax
with full military honours, but others object to any form of burial.
Moreover, in the whole course of the dispute between the chieftains the
word ‘suicide’ is not mentioned even once.

Hence we cannot with any probability attribute to the fact of Ajax’s
suicide the quarrel which arose about his burial. The quarrel arose, we
think, because he was a virtual murderer and, in a sense, a traitor.
We know that in ancient society persons who were convicted of treason
were not buried, and also that wilful murderers who had been ‘executed’
were not granted the rites of burial. In the course of the quarrel,
Ajax is called a murderer by Menelaus,[112] a traitor and a rebel by
Agamemnon.[113] It is only because of the intercession of Odysseus that
the other chiefs eventually permit Teucer to bury him. We feel that
Odysseus in this play acts as an intermediary who is used to bring the
dramatic story into harmony with Homeric facts. In the _Odyssey_[114]
Ajax is depicted as dwelling in Hades, the western Spirit-land which was
a place of repose for the Achaean dead but which could only be entered
when their bodies had been buried. If it had not been for this Homeric
reference we feel that the dead Ajax, who, by his suicide, had become his
own executioner, would, on account of treason and βούλευσις, have been
exposed to the wild birds and the dogs.


THE ‘TRACHINIAN MAIDENS’

This drama centres round the name of Hercules, and records his tragic
death under circumstances which to us suggest the presence, at the
birth of the story, of a morbid passion for legal problematising. As we
shall have to deal with the legends of Hercules at greater length when
we discuss the Euripidean dramas which are based upon them, we shall
postpone for the present our general remarks about this Hero-god. In
this play there is an incidental reference to the murder by Hercules of
Iphitus, the son of Eurytus, King of Oechalia, a deed which is mentioned
by Homer.[115] The herald says[116]:

    When Iphitus to the Tirynthian height
    Followed the track where his brood-mares had strayed,
    He, while the thought and eye of the man by chance
    Were sundered, threw him from the tower-crowned cliff.
      In anger for which deed the Olympian king,
    Father of gods and men, delivered him
    To be a bond-slave.

Now, in Homer, the Olympian Zeus takes no such action. It is merely
stated that the act of Hercules was a violation of the etiquette of
hospitality![117] The act is censured, but not punished. But in later
times, when murder became a religious offence and legend-makers imported
the pollution-doctrine retrospectively into pre-existing legends,
Hercules could not have escaped the pollution which even Apollo was said
to have incurred when he slew the Python. And just as Apollo was said to
have served as a bondman with Admetus,[118] so Hercules had to endure
also a period of bondage. We cannot suppose that the penalty of servitude
in the ‘pollution’ religion was identical with the tribal penalty of
‘servitude’ which is sometimes found in primitive societies.[119] The
latter penalty was domestic and local, being regarded as a substitute for
wergeld; the former penalty could only have been served ‘abroad,’ and it
was, we think, really a consequence of the helpless poverty of an exile.
Thus it is quite in keeping with what we may call the ‘pollution’ bondage
of Hercules that Deianira should say[120]:

    For since he quelled the might of Iphitus,
    We here in Trachis[121] dwell, far from our home,
    Dependent on a stranger, but where he
    Is gone none knoweth....
    These fifteen months he hath sent me not one word.

If it be objected that bondage or temporary exile was not the ‘pollution’
penalty for wilful murder, we may reply that while in Homer, and perhaps
also in Sophocles, the slaying of Iphitus is presented as wilful murder,
we learn from other sources that Hercules slew Iphitus under the
influence of frenzy. According to another version of the story, it was
in Lydia, not in Trachis, that Hercules went into bondage. Moreover,
Hercules was not an ordinary, real, historical man, and the multitudinous
legends which hang around him render him a very unsafe basis of
illustration for the operation of any law, human or divine!

The main theme of this play is the death of Hercules, which, by a tragic
irony, was caused by poison concealed in a garment which his spouse
Deianira had sent him in the belief that the garment would act as a
love-charm. Subjectively, the heart of Deianira was pure from guilt, and
ultimately, but too late, her innocence was vindicated by a discovery of
all the facts. The poison of the fatal garment[122] was traced to the
Centaur Nessus, who had assured Deianira that it was a charm for waning
love. The dying Hercules sees in the fatal gift the work of destiny, and
his son Hyllus proclaims the innocence of Deianira[123]:

    She erred with good intent. The whole is said.

The suicide of Deianira prevents us from witnessing the ‘forgiveness’
of the dying Hercules, the ‘release,’ as it were, which the revelation
of her innocence would have evoked. Instead we hear him utter,[124]
while still he believes her guilty, a ‘curse’ such as in historical
Attica would have declared her ‘polluted’ by blood-guilt and would have
compelled her, if she did not prove her innocence, to become an exile or
to die:

        O may I see her falling, even so
    As she hath thrown me, to like depth of woe.
    ... She who hath done this deed shall feel my power.
    Let her come near that, mastered by my might,
    She may have this to tell the world, that, dying,
    As living, I gave punishment to wrong.


FOOTNOTES

[1] _Hist. Gk. Lit._ p. 213.

[2] _A.P._ 119; _supra_, p. 276.

[3] _Poetics_, 25, 1460 b 36.

[4] See Butcher _ad loc._

[5] See also Tyrrell, ed. of Eur. _Bacchae_, Introd. p. xxxii.

[6] _Op. cit._ pp. 213-14.

[7] _Od._ xi. 271 ff.

[8] See _infra_, p. 315.

[9] See Jevons, _op. cit._ p. 225.

[10] _Supra_, pp. 279, 292.

[11] _Od._ iii. 306-7.

[12] See _Electra_, 1073, 1353.

[13] _Eum._ 235 ff.

[14] _Electra_, 32 ff.

[15] _Ib._ 274 ff.

[16] 490 ff.

[17] 1415 ff.

[18] _Laws_, ix. ch. 11.

[19] _Ib._ ch. 12.

[20] _Od._ iii. 309 f.

[21] 1483 ff.

[22] _Supra_, p. 120 ff.

[23] 110 ff., _cf._ 490 and 1388.

[24] _Supra_, p. 122.

[25] 1419 ff.

[26] 445.

[27] 439.

[28] _Agamemnon_, 228 ff., 1527 ff.

[29] _Electra_, 525 ff.

[30] 575 ff.

[31] _Supra_, p. 76.

[32] _The Nostoi._

[33] See Verrall, Introd. to Aeschylus, _Choephoroe_, p. xxvi.

[34] _Supra_, p. 55.

[35] _Od._ xi. 271 ff.

[36] _Supra_, p. 171.

[37] _Supra_, p. 309.

[38] _Infra_, p. 318.

[39] _Supra_, p. 294.

[40] 280 ff., 550 ff.

[41] 98 ff.

[42] _Supra_, p. 229.

[43] _Supra_, p. 236 ff.

[44] 1440.

[45] 1436.

[46] _Op. cit._ p. 211.

[47] 1442.

[48] 1438 ff.

[49] _Od._ xi. 271 ff.

[50] _Oed. Rex_, 800 ff.

[51] See _O.C._ 965 ff.

[52] _O.R._ 741.

[53] _Laws_, ix. ch. 9; _supra_, p. 210.

[54] See _infra_, pp. 341 n.; 359 n.

[55] _Phoenissae_, 62.

[56] _Oed. Col._ 400 ff., 785 ff.

[57] 975 ff.

[58] _I.e._ Kreon.

[59] 992 ff.

[60] 732 ff.

[61] 741 ff.

[62] 400 ff.

[63] 407.

[64] 945.

[65] 1340.

[66] 1363 ff.

[67] 87 ff.

[68] _Supra_, p. 151.

[69] i. 35.

[70] _Supra_, pp. 292, 316.

[71] 295 ff.

[72] 665 ff.

[73] i. 28.

[74] _Il._ xxiii. 677.

[75] See _Od._ xi. 271 ff.

[76] _Supra_, p. 164.

[77] Dem. _De Corona_, 291, 187.

[78] See _C. Agorat._ 135, 56.

[79] i. 28.

[80] Sophocles, _Ajax_, 1006-20; _infra_, p. 327 f.

[81] i. 28.

[82] 1233 ff.

[83] _Il._ ix. 458 ff.

[84] 775 ff.

[85] 309.

[86] 1064 ff.

[87] _Supra_, p. 245.

[88] 195 ff.

[89] _Supra_, p. 231.

[90] _Laws_, ix. ch. 9.

[91] _Supra_, pp. 193, 216.

[92] See Eur. _Phoenissae_, 300-445, 460-635.

[93] See Jebb’s edition, Introd. p. xxi ff.

[94] 466.

[95] 460 ff.

[96] 697.

[97] _E.g._ 20 ff.; 450 ff. For an interesting historical parallel
compare the conflict of opinion at Corinth in regard to the ‘fratricide’
of Timoleon. (Diodorus, xvi. 65; Plutarch, _Timoleon_, 1-8.)

[98] _Supra_, p. 223 ff.

[99] _Supra_, p. 251.

[100] 810 ff.

[101] 228 ff.

[102] _Supra_, pp. 188, 220.

[103] 724.

[104] 1127 ff.; see also 1060.

[105] The story of Ajax’s attempted murder and suicide is post-Homeric.
See Jebb’s _Ajax_, Introduction.

[106] 1007 ff.

[107] _Supra_, p. 248.

[108] _Supra_, p. 161.

[109] 905 ff.

[110] _Supra_, p. 238.

[111] _Laws_, ix. ch. 12.

[112] 1126 ff.

[113] 1240 ff.

[114] _Od._ xi. 543 ff.

[115] _Od._ xxi. 27 ff.

[116] 268 ff.

[117] _Od._ xxi. 28.

[118] Aeschylus, _Eum._ 726; Euripides, _Alcestis_, 1-10.

[119] _Supra_, p. 44.

[120] 40 ff.; see also λατρεύοντα (35).

[121] See also Pausanias, i. 32.

[122] 1140.

[123] 1136.

[124] 1003-4, 1110-14; 1133.




CHAPTER III

EURIPIDES


The extant dramas of Euripides are permeated with references to homicide.
It will be necessary to examine seventeen out of the nineteen extant
plays. We need not discuss the _Cyclops_ or the _Rhesus_. The Oresteian
dramas will be our first concern. In attempting a legal analysis of
Euripides we are confronted with a difficulty which is present only
in a minor degree in the case of Aeschylus and of Sophocles, namely
the difficulty of deciding how far Euripides followed mythological
tradition, or how far he ignored this tradition and invented characters
and plots which reflect mainly his own mental outlook and the ideas of
his time. Owing to the prominence which he gives to the prologue and to
the _deus ex machina_, and owing to the frequency of his allusions to
contemporary ideas and developments, it is often maintained that the main
elements of Euripidean drama are derived from fifth-century Athenian
life, and that, therefore, the plots and the scenes are incongruous and
impossible. Thus Jevons says[1]: ‘If Sophocles laid his scenes in “a
past which never was present,” he at any rate adhered to his imaginary
period with fidelity. But Euripides lays his scenes in a time which is
neither past nor present, but an incongruous and impossible epoch, in
which Theseus defends the republican institutions of Athens and Hecuba
regrets the high price of Sophists’ lectures’; and again[2]: ‘The motive
seems to have been to give as little time as possible to the myth as
traditionally related, in order to concentrate attention on the incidents
and situations of Euripides’ own making. Euripides could not throw
off the myths altogether, but he got rid of them as much as possible
by relegating them to the prologue and to the _deus ex machina_’....
‘Compelled[3] by the tradition of the tragic art to take his subjects
from mythology, Euripides was impelled by his instinct as an artist
to draw his characters from real life: and to present the heroes of
mythology acting from everyday motives and with everyday feelings was to
attempt in most cases an impossible fusion. The slaying of Clytaemnestra
by Orestes is a proper subject for the art of Sophocles or Aeschylus,
but is wholly unsuited to the new form of art which Euripides was making
for.... The discords[4] which exist in Euripides’ plays between his
character-drawing and his situations, between his sentiments and his
mythical subjects ... are discords which Sophocles avoided and Euripides
could not or would not convert into harmonies.’ On this subject, Verrall
also holds a similar view.[5]

It would be obviously impossible for us to discuss this matter with
any degree of completeness, but we must point out that we do not agree
with this interpretation of Euripides. In Attic drama, as we conceive
it, it was customary for the poet to derive the skeleton of his plots
and situations from traditional myth. In clothing that skeleton with
vitality and movement and with organic unity, the dramatist was compelled
to translate himself into the past, to reconstruct from his data the
details of speech, of action, and of character. In a word, he consciously
archaised. Now we admit that in this vital point of ancient dramatic
art Euripides is not so correct, so unimpeachable, as Sophocles or as
Aeschylus. He could not always shake off the influences of his time. But
to suggest that Euripides deliberately set himself to create a new form
of drama admittedly incongruous, unhistorical and unreal, seems to us,
as far as we can judge, as nonsensical as to suppose that Pheidias could
have created a statue of Olympian Zeus with an Asiatic turban on its head
and ‘barbarian slippers’[6] on its feet. In our view, Euripides followed
traditional legend not only in the prologue and in the epilogue, but also
in the dramatic ‘episodes.’ To depart from tradition, it would have been
necessary and, for a dramatist with new and advanced ideas, it would
have been easy to invent new characters, new names, new situations. In
such an event, Euripides could at least have been consistent. But since
in actual fact we find that he concerned himself less with questions
of consistency than with situations involving surprise and horror, with
problems of human passion, and with incidents of human interest, we
must attribute his inconsistencies to the fact that he was fettered by
traditional legend and that he overreached himself in his desire to give
to the characters of mythology a really living personality. He was, of
course, aware of variations in the legend. Like Sophocles and Aeschylus,
he had to become an ‘eclectic,’ to choose certain elements from different
stories for dramatic purposes, and to ignore other elements. But whereas
the eclecticism of Sophocles and also to a great extent of Aeschylus is
dominated by the canon of consistency, that of Euripides is dominated
mainly by a less orthodox canon which is more conducive to human interest
and which we may call the canon of psychic hedonism. Judged by the
criterion of the Horatian maxim

    aut famam sequere aut sibi convenientia finge,[7]

Euripides stands condemned if the latter alternative is applicable to the
former. But if the maxim be interpreted to mean ‘Follow tradition and if
there are variations in the story do not trouble about consistency[8]
provided that every character and every situation has a traditional
basis, but if you abandon tradition consistency is absolutely necessary,’
then Euripides is canonical. Of the real meaning of this maxim we cannot
be certain, but to our mind it seems to mean: ‘Consistency is the aim of
all literary art, but tragedians must be guided by traditional myth, and
therefore in tragedy consistency, though desirable, is not indispensable,
whereas in all other domains of art consistency is essential.’ Miss
Harrison and Gilbert Murray[9] have suggested a theory of the origin of
Greek tragedy which supposes, in effect, that its forms or characteristic
‘events’ were derived from an ancient ritual of the Year Spirit, while
its actual ‘content,’ its characters, situations, episodes, were derived
from Homeric saga. This theory we need not now discuss, but we must point
out that Homer was not the only source of ancient mythology. When Horace
says[10]:

    rectius Iliacum carmen deducis in actus
    quam si proferres ignota indictaque primus,

he merely mentions the _Iliad_ as an example of traditional story, not
as the boundary of its extent. In many instances—as, for example, in the
case of Orestes—we have suggested that there were several variants in the
post-Homeric myths.

Aristotle says[11] of Sophocles and Euripides, Σοφοκλής ἔφη αὐτὸς μὲν
οἵους δεῖ ποιεῖν, Εὐριπίδην δὲ οἷοι εἰσίν. This much-controverted
statement is usually interpreted to mean that Sophocles reproduced the
antique mythological atmosphere in his characters and in his plots,
whereas Euripides imported contemporary types into the legendary
background. But we find it very difficult to believe that Euripides
conceived Orestes, Hercules, Menelaus and other heroic characters as
ordinary fifth-century Athenians.[12] The context in which this statement
of Aristotle occurs is very obscure. Aristotle mentions three possible
ideals of characterisation: ἢ γὰρ οἷα ἦν ἢ ἔστιν, ἢ οἷά φασιν καὶ δοκεῖ,
ἢ οἷα εἶναι δεῖ, ‘Either as (things and people) were or are, or as they
assert that they are and as they seem to be, or as they must be.’ Now if
the criticism of Euripides which Aristotle attributes to Sophocles read
οἷοι ἦσαν instead of οἷοι εἰσίν, meaning ‘men as they were,’ _not_ ‘men
as they are,’ we should be more readily prepared to accept it. We hope to
show that the characters and situations in Euripides are often archaic,
and this archaism must be attributed either to the conscious archaising
of the dramatist or to the antiquity of the legends which he follows.

With this preamble we may proceed to discuss the references to
blood-vengeance in the dramas of Euripides. Once more we will begin
with the legend of Orestes. We do not possess a Euripidean play which
describes the actual murder of Agamemnon; but the deed is attributed to
Clytaemnestra and to Aegisthus in the prologue to the _Electra_.


THE ‘ELECTRA’

In the _Electra_ Euripides follows closely the lines which were laid
down by Aeschylus in his _Choephoroe_ and by Sophocles in his _Electra_.
There are certain minor divergencies which Verrall has indicated in the
Introduction to his edition of the _Choephoroe_, but there are also
very striking similarities, not only in the main plot, but even in the
arguments which appear in the dialogue. We are told that Orestes left
Argos while his father was still in Troy, and went to Phocis.[13] We do
not hear that at that period he was associated with Athens. Thus the
Homeric narrative[14] is ignored and we observe, once more, the strange
omission of a fact which rendered so natural the legendary assumption of
Orestes’ subsequent trial at Athens. But the omission is less flagrant
in Euripides than it is in Aeschylus or in Sophocles, because Euripides
follows in the main a legend which connected the trial of Orestes with
Argos and not with Athens, and though the dramatist cannot altogether
avoid a reference to a trial at the Areopagus, he refers to it in a
subordinate manner,[15] attributing, no doubt, any difficulty which he
found in understanding it to the inscrutable nature of Apolline decrees.

Once more we find Clytaemnestra pleading, as a justification for her act,
the ‘sacrifice’ of Iphigeneia. The peasant of the Prologue doubts the
justice of this plea[16] and the ordinary people are not in the least
deceived by it. Electra repudiates it as a dangerous fiction. She reveals
the insidious nature of the plea by pointing out, as she does also in the
_Electra_ of Sophocles, that if Clytaemnestra arrogates to herself the
right to decide whether the sacrifice of Iphigeneia was or was not an
act of murder, and whether, therefore, the death of Agamemnon was or was
not justified by this sacrifice, she must logically concede to Orestes a
similar right of decision regarding these issues, and therefore, also,
the right to slay Clytaemnestra if he considers it right to slay her!

    If blood, in righteous retribution, calls
    For blood, by me behoves it thou should’st bleed,
    And by thy son, Orestes, to avenge
    My father: there if this was just, alike
    Is it just here.[17]

In reasoning of this kind, which we cannot suppose to have been included
in traditional saga, we see a deliberate effort at ‘conscious archaising’
on the part of Sophocles[18] and of Euripides. In the Homeric society
there existed, we have argued,[19] a distinction between murder and
righteous vengeance. If this distinction had not existed in the Achaean
caste the result would have been chaotic. Instead of a restricted
system of ‘private vengeance’ which is controlled by discipline and
by public opinion, we should find prevailing everywhere a barbarous
vendetta-system. The ‘sacrifice’ of his daughter by Agamemnon is not
mentioned in Homer, and there is no reason for assuming that such a
sacrifice ever took place. But if it had occurred, the Achaeans would not
have regarded it as an act of murder. In historical Athens such a plea
as that which Clytaemnestra here advances could never have been made,
as the legal and religious atmosphere was so entirely different. Hence,
in dramatising a legend of this kind the correct reproduction of such
arguments as those which we are discussing demanded considerable skill.
As this play of Euripides cannot be regarded as a mere servile imitation
of the corresponding Sophoclean drama, we must suppose that Euripides
had recourse to ‘conscious archaising.’ It so happens, as we think, that
in attributing this sentiment to Electra he has visualised correctly the
Achaean attitude to murder.

In the _Orestes_ we shall find an argument attributed to Tyndareus
which at first sight seems to resemble the reasoning of Electra in
this passage, but which is really very different. Tyndareus says of
Orestes[20]:

    He ought t’ have called the laws, the righteous laws,
    T’ avenge the blood, and by appeal to them
    Have driven his mother from this royal house:
    Thus ’midst his ills calm reason had borne rule,
    Justice had held its course, and he been righteous.

We believe that this sentiment of Tyndareus was either included in or
suggested by an Argive variant of the Oresteian legend, and that it
is based on the assumption that trials for homicide existed _before_
Orestes slew his mother. The contrast which is drawn in the _Orestes_
passage is a contrast between social justice and private vengeance, but
the _Electra_ passage indicates a contrast between private vengeance and
vendetta. Now, in social justice such as existed in historical Greece,
from the seventh century onwards, the Achaean system of private vengeance
would have been regarded as a crime. Similarly in the Achaean system of
‘private vengeance’ uncontrolled and indiscriminate ‘vendetta’ was a
crime. In both cases the crime would have consisted in the violation of
the existing order. Now Euripides suggests (as we infer from these two
passages in the _Orestes_ and the _Electra_) that the consequence of such
a violation is identical in both circumstances, namely an indefinite
series of murders. As applied to vendetta we admit that this criticism is
true, but in regard to private vengeance it is false. We have seen[21]
that such a series of slayings did not characterise either the Achaean or
the Pelasgian system of ‘private vengeance.’ We shall have occasion to
refer to this topic again when we discuss the problems of the _Orestes_
drama.[22]

In the _Electra_ the Chorus approves of the long-expected vengeance
of Orestes. Speaking of the slain Aegisthus, they say to his slayer,
Orestes[23]:

    His deeds were dreadful: dreadful hath he felt
    Your vengeance. With great power is Justice armed.

Orestes tells Electra that, since Aegisthus was a murderer, his body
cannot be buried[24]:

                    ... his lifeless corse
    I bring thee: treat it as thy soul inclines;
    Cast it by rav’nous beasts to be devoured,
    Or to the birds, the children of the air;
    Fix it, impaled, a prey.

We have already quoted Plato for the custom of refusing burial to
murderers. We presume that it was a legally prescribed custom in
historical Greece. The precise origin of the custom cannot be determined
with any degree of certainty, but we associate it with the doctrine of
pollution and the evolution of State power in the seventh century. In
Homer,[25] of course, Aegisthus was duly and formally buried, even though
the people of that age regarded burial as a passport to eternal repose
in the Spirit-land. It is perhaps because of this Homeric fact that,
at the end of the _Electra_,[26] the deities Castor and Pollux decree
that the body of Aegisthus must be buried. Thus we find Euripides making
use of the _deus ex machina_ to reconcile two divergent viewpoints, and
probably, therefore, two inconsistent legends.[27]

Euripides is distinctly non-Homeric in attributing to Orestes a
psychological conflict as the dread moment approached in which he was
to slay his mother and his cousin Aegisthus. Such a conflict would have
been natural, in Pelasgian tribalism, if a kin-slayer refused to go
into exile; but the conflict would not have been confined to a single
avenger: it would have been diminished by the group-consciousness of an
avenging clan. Nor could such a conflict have arisen in historical times,
for the punishment of kin-slayers had, as we maintain,[28] been assumed
by the State. Hence we must regard this tragic conflict as a piece of
unhistorical conscious archaising on the part of Euripides. The fact that
the picture is unhistorical is no doubt to be condoned in view of its
dramatic value.

In this play Electra actually assists her brother in his deed of
vengeance. For this co-operation she is sentenced to exile by Castor and
Pollux,[29] but we are prevented from regarding the penalty as severe by
the further decree that she must become the wife of Pylades![30] It is
true that Pylades was absent from the actual slaying of Clytaemnestra,
but a short time previously he was present at the death of Aegisthus,[31]
although he took no actual part in the slaying. From the standpoint of
historical Attic law, he was therefore as guilty (or as innocent) as
Orestes and Electra were. Hence this decree of Castor and Pollux must
be interpreted prophetically; they are speaking of the future, which,
as gods, they foresee. Therefore they regard the exile of Electra as
temporary and her guilt as that of extenuated matricide. That the death
of Clytaemnestra and Aegisthus involved their slayers in some degree of
guilt, in the opinion of Castor and Pollux, is obviously suggested by the
penalties which they impose. They say to Orestes[32]:

                  With justice vengeance falls
    On her: in thee unholy is the deed.

Such sentiments can only be rendered intelligible by assuming the
existence of what we have described[33] as the second Attic legend,
which conceived Orestes and his friends as guilty of quasi-involuntary
homicide. Castor and Pollux are compelled by their foreknowledge of
destiny to believe that, some day, a court will declare the act of
Orestes to have been either justifiable or extenuated; that Court they
know will be the Athenian Areopagus. They cannot understand, perhaps,
why the court should be Athenian, but they know it must be so! From a
legal point of view, nothing could be more strange than their decree that
Orestes, pending his acquittal at the Areopagus, must leave his native
Argos. In historical Greece an accused kin-slayer awaiting trial would
only have been debarred from the temples and the public places of his own
State; he would have been tried before a court of his own State. He would
not have been tried by a foreign court unless he fled from his own State
and sought permission to reside in a foreign State. Hence to command
Orestes to leave Argos until he was tried at Athens is legally absurd.
The only explanation which we can offer for such an absurdity is that
Euripides is following either two separate legends or a fusion of two
legends, and that he uses the dramatic device of the _deus ex machina_ to
remove, or rather to obscure, the inconsistency and the confusion.

Again, it is strange that, in this play, Castor and Pollux, who, as
divine kinsmen of the slain Clytaemnestra, should appear in a diabolical
implacable rôle clamouring for blood, content themselves with the
promulgation of Apolline decrees which they do not profess to understand.
We can only explain this fact by supposing that in the story of Orestes,
as it evolved in post-Homeric times, the influence of Apollo, the pioneer
Interpreter and Purifier, was so great that no respectable local gods
could resist his decrees; and it devolved upon the quasi-diabolical
Titanic Erinnyes to unfurl the standard of revolt.

Castor and Pollux proclaim that, at Athens, Apollo will take upon himself
the guilt of having commanded the deed[34]:

                          For the blame
    Apollo on himself will charge, whose voice
    Ordained thy mother’s death.

In historical Greek law the plotter and the executor of bloodshed were
equally criminal and culpable. To partition blood-guilt was not to remove
it. Therefore, if Apollo can transfer to himself the guilt of Orestes,
this can only be because there is a doubt about the nature of the guilt.
But in estimating the nature or the extent of this guilt, the legends
seem to have been divided, some of them regarding the case as one of
justifiable matricide and others as one of extenuated matricide.[35]
Similarly the Erinnyes were divided in their opinion. Sometimes they
pursue Orestes in the rôle of avenging relatives clamouring for the trial
or extradition of a wilful kin-slayer who had fled to a foreign State
with the intention of residing there as an exile and who hoped to secure
admission by a plea of ‘justifiable slaying’; but sometimes they seem to
suggest that Orestes was not a matricide of full guilt, that the anger
of the slain was temporary and transient, and that it would ultimately
terminate in ‘forgiveness,’ because of the extenuation involved in
Apollo’s command.

This latter standpoint is undoubtedly implied in several passages in
the _Electra_: we shall find it also at the end of the _Orestes_,[36]
for Orestes is there condemned to a period of one year’s exile from
Argos and from Athens, and this penalty can only refer to involuntary or
quasi-involuntary slaying, and presumes, in the event of kin-slaying,
that the deed was either formally ‘forgiven’ or that, at least, it
merited ‘forgiveness.’ Plato[37] assures us that in such cases the anger
of the dead did not continue for more than a year. He refers to a sacred
legend which described how a freeman who had been slain was angry with
his slayer while his death was still a recent event, and in his anger he
harassed and worried the slayer, ‘using memory as an ally.’ This picture
seems to us very suggestive of the attitude of the milder group of Furies
in some Oresteian legends, but the attitude of the fiercer group is more
aptly illustrated by the following story from Herodotus which reveals the
nature of the implacable anger of the dead. Herodotus[38] tells us how
Cleisthenes, the tyrant of Sicyon, was anxious to drive out of Sicyon the
spirit and the cult of the Argive hero Adrastus, and how, to secure this
object, he established in Sicyon the hero-worship of a certain Theban,
named Melanippus, who had slain a son and a son-in-law of Adrastus in the
war of the Seven against Thebes. Cleisthenes therefore anticipated that
by the magical induction of the spirit of Melanippus into a Hero-tomb
at Sicyon he could drive out of Sicyon the Spirit of Adrastus, because
Adrastus was still so angry with the slayer of his kindred that he could
not, even after the lapse of five hundred years, tolerate the presence of
the Spirit of Melanippus!

The meaning of the ‘conversion’ of the Erinnyes therefore varies
according to the dramatist’s conception of the rôle of the Erinnyes. In
Aeschylus the Erinnyes proclaim Orestes a wilful matricide, and their
‘conversion,’ which implies that they accept his plea of justifiable
matricide, must be regarded as symbolical of a transition in their
attitude to the social and religious aspect of homicide.[39] But in
Euripides the conversion of the Erinnyes symbolises not so much a
transition as a compromise. Thus, in the _Iphigenia in Tauris_ some
of the Erinnyes refuse to be placated even when the Areopagus acquits
Orestes.[40] For them the issue does not lie between wilful matricide
and justifiable matricide, but between varying degrees of extenuated
matricide. Hence they reject a verdict of acquittal, because they
interpret it not as an indication that Orestes was justified, but as an
indication that he had already suffered a sufficient penalty for his
‘extenuated’ act of matricide. Some of the Erinnyes, however, accept
the acquittal, because they are satisfied that Orestes has sufficiently
atoned for his guilt.

The most severe and uncompromising attitude to the guilt of Orestes which
is found in any legend appears in the _Orestes_ drama, which we shall now
discuss.


THE ‘ORESTES’

The main theme of the _Orestes_ is the trial of Orestes at Argos, on
the charge of having slain, unjustly, his mother, Clytaemnestra. It
would not be correct—it would, in fact, be misleading—to assert that, as
the Euripidean _Electra_ corresponds with the Aeschylean _Choephoroe_,
so the _Orestes_ corresponds with the _Eumenides_. The points of
resemblance between these two dramas are much less important than the
points in which they differ. In this play we find, very strangely, a
reference to two distinct trials of Orestes, at two distinct places, in
two distinct States, namely Argos and Athens. But while the Argive trial
is described at great length, and forms in fact the chief topic of the
play, the Athenian trial is only casually referred to, in the closing
scene, as an event of the not too distant future. In the Argive trial
Orestes is condemned to death as an unjust avenger, or, which is almost
the same thing, as a wilful matricide. His act is conceived, we think,
as an act of culpable private vengeance committed in an atmosphere of
social justice. But at the end of the play, when Apollo appears on the
scene, the act of Orestes is presented, according to our interpretation,
as extenuated matricide, which involves a penalty of temporary exile.
The words of Apollo imply that when Orestes has served a period of
one year’s exile—the penalty which was prescribed by Attic law for
involuntary homicide—he will be declared by the Athenian Areopagus to
have sufficiently atoned for his partial degree of guilt and he will be
at liberty to return forthwith to Argos. Now these two verdicts, these
two conceptions, are legally incompatible. The verdict of the Argive
court is not found in Sophocles or in Aeschylus, and, needless to say, it
is not found in Homer; the Athenian verdict has, however, been rendered
familiar by references in Aeschylus, in Sophocles, and in the _Electra_
of Euripides.

Are we then to suppose that the Argive verdict was the invention of
Euripides? Such, no doubt, is the view of the matter which Jevons
and Verrall would adopt. They would probably see in the Argive trial
Euripides’ own idea of how Orestes ought to have been tried, and in the
use of Apollo as a _deus ex machina_ they would see a device by which
Euripides’ idea was brought into harmony with the traditional legend.

But we venture to suggest, as against such an hypothesis, that in his
account of the Argive trial Euripides is not putting before us his own
conception of the moral and legal position of Orestes. Euripides leaves
us in no doubt that in his opinion Orestes was not a matricide (_i.e._ an
unjust avenger) and that he was not worthy of death. Hence the attitude
of the dramatist is much more in harmony with the traditional Attic
legends which regard Orestes as a just avenger, or at most as an avenger
of merely nominal guilt, than with the attitude of the Argives and their
verdict of condemnation which is the predominant feature of the drama.

At the Argive trial all the speakers save one solitary individual are
opposed to the death penalty, yet only one speaker favours complete
acquittal. Now it was in the speeches that Euripides found himself
least trammelled by tradition, and if he ‘invented’ the Argive
episode—including the verdict—in order to provide, for an Athenian
audience, a thrill which the traditional accounts of the Athenian trial
of Orestes no longer possessed, why is he not consistent in attributing
to the speakers the sentiments which are expressed in the verdict? How do
we explain, on the ‘invention’ hypothesis, the fact that the Messenger,
in his account of the trial, takes the part of Orestes and condemns the
verdict? The ordinary Athenian of Euripides’ day, who regarded the matter
from the standpoint of contemporary law, could not possibly have approved
of the act of Orestes. Why does not Euripides express this disapproval in
his speeches, since he was free to do so?

Again, Euripides was an Athenian democrat, and the Athenian democratic
party were anti-Spartan and pro-Argive. In the _Andromache_[41] Euripides
reveals his democratic leanings by a bitter attack upon Sparta. In the
_Orestes_ he undoubtedly exalts an Argive court above the Athenian
Areopagus, but is there not a suggestion that the Argive verdict was
barbarous and unjust?

Again, if the Argive trial episode was the invention of Euripides,
would it not have been just as easy, and more consistent, for him to
have caused the Argives to acquit Orestes? If he was not fettered by
any tradition, would he not have represented the Argive verdict as
similar to, if not identical with, the predicted verdict of the Athenian
Areopagus? It may be suggested, as an objection to this view, that an
adverse verdict at Argos was necessary as a prelude to the Athenian
trial, and that Euripides was naturally anxious to include a reference
to the Areopagus, out of respect for the legends and for the prestige
of the Areopagus. The actual _Orestes_ drama supplies the answer to
this objection, for it ignores, almost completely, the Attic legends
of Orestes, and it shows very little respect for the Areopagus court.
Moreover, a favourable verdict at Argos could still have been followed
by a trial at Athens, if we merely suppose that the Erinnyes refused
to accept an Argive acquittal, just as the verdict of the Areopagus
could have been followed by a trial among the Tauri (if these people
had developed homicide courts), since in the _Iphigenia in Tauris_ the
Erinnyes refused to accept the Athenian verdict.

Again, it is not very flattering to the Argives (and Euripides was
pro-Argive) to represent them as condemning Orestes to be stoned to death
at one moment, and as accepting, twelve months afterwards, a condemned
criminal as their king, simply because a different verdict had been
brought in by an Athenian court! In fact, to suggest that Euripides
invented the conjunction of two different trials, and represented one as
overriding the decision of the other—the foreign court having the right
to dictate to the native court—is to attribute to Euripides an astounding
disregard for international Greek homicide-law. The introduction of
Apollo in order to persuade[42] the Argives to accept Orestes as their
king would not be sufficient, on this hypothesis, to remove the insult
to the Argive people which is implied in the suggestion that they are
compelled to accept Athenian arbitration.

For these reasons then, and for others which will appear in the course of
the discussion, we do not believe that the episode of the Argive trial
was invented by Euripides. We admit of course that Euripides composed the
speeches, because he wrote the play! But we believe that he was guided
and controlled by a certain tradition, by the skeleton form of an Argive
saga which supplied him with the fact of an Argive trial of Orestes, with
the nature of the verdict, and perhaps with some remarks which were made
at the trial. While there are many elements in Euripides’ account which
could have been suggested by contemporary Attic thought, we think that
the skeleton-saga reflects, and therefore probably originated in, the
early historical era. The Achaean atmosphere is missing; Orestes was an
Achaean, but he was judged, in this saga, as the Achaeans would not have
judged him.

The reason why Aeschylus ignored this legend was that it obviously could
not be reconciled with his theory that the Orestes trial was the first
homicide-trial in Greek lands, it was less complimentary to Athens than
the Attic legends were, and it was too much at variance with the Phocian
legend, in which Apollo was the central figure and Orestes was conceived
as a just avenger. It was probably for similar reasons that Aeschylus
also ignored the Arcadian stories of Orestes, of which one seems akin to
the Argive variant, for it represented Orestes as never having returned
to Argos and as having died of a snake-bite in Arcadia.[43] Euripides,
however, apparently found the Argive legend more interesting than the
others, though he condescends to mention, in passing, the Attic and
Arcadian variants.[44]

If, then, Euripides reproduces in the same drama several different
legends, without any regard for their mutual inconsistencies, this is
probably because he aimed at variety and human interest rather than
consistency, and because he felt that he could always fall back, in
the last resort, on a _deus ex machina_ to help him to maintain the
appearances, if not the realities, of consistency.

In the beginning of the play Electra describes, though naturally she
does not accept, the prevailing attitude of the Argives to the vengeance
of Orestes. This attitude is post-Draconian. Orestes is conceived, not
as an Homeric Achaean, but as an Argive citizen of the historical era.
He is of course ‘polluted’ even before trial, and so also is Electra. A
preliminary decree of social boycott has been issued against them and the
sentence of death is foreshadowed as ultimately inevitable. Thus, Electra
says[45]:

    Meantime the State of Argos hath decreed
    That shelt’ring roof and fire and conference
    Be interdicted to us matricides.
    And this decisive day the State pronounces
    Our doom, to die, crushed with o’erwhelming stones,
    Or by th’ avenging sword plunged in our breasts.

It is strange that Helen, the sister of Clytaemnestra, who would
naturally have been expected to assume an attitude of stern condemnation,
assures Electra that she regards Orestes and herself as innocent, and
that she transfers the guilt to Phoebus:

    With thee conversing I am not polluted,
    Charging the crime on Phoebus.[46]

There is a suggestion of the Attic rather than of the Argive legend in
this attitude of Helen. Her words are very similar to those spoken by
Castor and Pollux in the _Electra_ in a dialogue with Orestes and the
Chorus[47]:

    _Chorus_: O sons of Jove, may we presume t’ approach
                And converse with you be allowed to hold?
    _Castor_: You may: no curse this blood derives on you.
    _Orestes_: May I address you, sons of Tyndareus?
    _Castor_: Thou mayst: to Phoebus this dire deed I charge.

This confusion may be attributed to a conflation of ideas which had
already affected the Argive legend prior to the time of Euripides, or it
may be merely due to a lack of consistent discrimination, on the part
of the dramatist, between the divergent viewpoints of the Attic and the
Argive legends. In historical times a person accused of homicide was
not debarred from private social intercourse. He was merely prohibited
from frequenting the temples and public places. Plato asserts[48] that
there were degrees of pollution corresponding to degrees of guilt and
in proportion to the certainty of guilt. In this case, therefore, the
‘pollution’ of Orestes and Electra was of a minor character, since they
were both as yet untried and unconvicted.

Orestes naturally interprets his guilt from the standpoint of the Attic
and the Phocian legends, but he does not distinguish very clearly[49]
between justification and extenuation. He says to Menelaus[50]:

    Yet have we where to charge our miseries ...
    Phoebus, by whose command I slew my mother.

Again, he says to Tyndareus[51]:

        See’st thou Apollo, who to mortal ears
    Sounds from his central cave the voice of truth?
    Him we obey in all that he commands:
    Obeying his commands I slew my mother:
    Drag him then to your bar, put him to death:
    The guilt is his, not mine. What should I do?
    The guilt on him transferred, is not the god
    Sufficient to absolve me? Where shall man
    Find refuge if the god, at whose command
    I did it, will not now save me from death?

But the attitude of Tyndareus and Menelaus towards Orestes’ act which is
revealed in their conversation with Orestes is fundamentally different.
This attitude discloses a condemnation of private vengeance from the
standpoint of social justice. As we conceive it, this attitude would
normally have been adopted by Greek States, not only in Euripidean
times but also in Draconian times. We have suggested that Euripides
is following, in the play, a post-Draconian Argive legend—we use the
term ‘post-Draconian’ merely to indicate that the legend presumes
the existence of State interference in the trial and punishment of
homicide. This legend was therefore, as we conceive it, so historical, so
‘modern’—in a sense—that it demanded little or no conscious archaising on
the part of Euripides. Tyndareus says to Menelaus[52]:

    If virtuous and dishonourable deeds
    Are plain to all, who more unwise than he?
    Deaf to the call of justice, he infringed
    The firm authority of the public laws:
    For when beneath my daughter’s murd’ring axe
    Th’ imperial Agamemnon bowed his head,
    A horrid deed, which never shall I praise,
    He ought t’ have called the laws, the righteous laws,
    T’ avenge the blood, and by appeal to them
    Have driven his mother from the royal house:
    Thus ’midst his ills calm reason had borne rule,
    Justice had held its course, and he been righteous.
    But the same Fury which had seized his mother
    Had now seized him; and with ungoverned rage,
    Justly abhorrent of her impious deed,
    He did a deed more impious, slew his mother.

In this passage the historical Greek system of State trial and the
historical penalty of exile for wilful murder are clearly indicated.
We need not point out how inapplicable such an attitude is to Homeric
Achaeans.

The manner in which social justice abolished the evils of vendetta is
thus described[53]:

    For, let me ask thee, should the faithless wife
    Bathe in the husband’s blood her murd’rous hands,
    And should th’ avenging son the mother slay,
    His son retaliate by deed of blood,
    What bound shall the progressive mischief know?
    The wisdom of our ancestors ordained
    That he who had the guilt of blood upon him
    Be not allowed the sight, the walks of men,
    By banishment atoning, not by death:
    Else one must always be to death devote
    Who hath the last pollution on his hands.

It was natural that the Greeks of the ‘pollution’ era—that is, the
historical period—should have referred to the chaotic vendetta which
their ‘fathers’ had abolished. But the Achaean vengeance-system was not
a chaotic vendetta, because Achaean military discipline and Achaean
public opinion were able to maintain a distinction between murder and
just revenge.[54] We have said[55] that it was only in the Dark Ages of
chaos and migration—that is, from 1000 B.C. to 700 B.C.—when the control
of tribal chieftains, of phratry-assemblies, and of clan-courts, and
the public co-operation of organised groups were paralysed and rendered
impotent, that the instinct and habit of vendetta was awakened from
its slumber. In the seventh century the doctrine of pollution and the
evolution of State power restored equilibrium by the institution of
the historical system of homicide law. But it was erroneously supposed
that the vendetta system which was thus abolished had always existed in
prehistoric Greece.

If in historical Greece Clytaemnestra had slain her husband, she would
have been tried by a regular State-court, and, as her husband was not
a kinsman, she would have been permitted, as Tyndareus here implies,
the option of exile. But Tyndareus does not correctly visualise the
Achaean mode of vengeance. He argues as if trials for homicide had
been always and everywhere operative. This anachronism, at least, is
absent in Aeschylus, who could not have attributed such an attitude to
his characters, since, in his view, the trial of Orestes was the first
Greek murder-trial.[56] Hence it is that the condemnation of ‘private
vengeance’ from the standpoint of social justice does not appear in
Aeschylus—nor, we may add, in Sophocles.[57]

Further, the suggestion of Tyndareus that Clytaemnestra could have been
sent into exile is an additional anachronism. In historical Greece a
wilful murderer usually went into exile. But the autocratic Homeric
Clytaemnestra remained in the royal palace with Aegisthus! Thus Tyndareus
again fails to reproduce the essential elements of the Homeric story.
Now Euripides elsewhere, as we shall see, frequently reproduces quite
correctly the Homeric atmosphere. If then he attributes here[58] to
Tyndareus a non-Homeric standpoint, it is not because he was incapable of
correctly archaising, but because he deliberately depicted a non-Homeric
Oresteian legend and attributed a non-Homeric attitude to the Argives.
The views which he attributes to Tyndareus are quite consistent with the
subsequent verdict of the Argive court, and with the sentence of death
for unjustifiable kin-slaying, which is pronounced against Orestes and
Electra.

There is a very archaic—an almost Homeric—tone in the words with which,
we are told, the herald ushered in the Argive trial[59]:

    Soon as th’ assembly sate, the herald’s voice
    Proclaimed free speech to all who wished to speak,
    Whether Orestes for his mother slain
    Should die or not.

In historical times such a proclamation could only be associated with
a trial which was known as an ἄγων τιμητός, concerning offences for
which the penalty was not fixed by law, and for which, therefore, the
penalty had to be determined by the court, as, for instance, the crime of
Impiety.[60] We have argued[61] that there were no homicide-indictments
(γραφαί φόνου) at Athens, but even if there had been there could not
have been any assessment of penalties in such cases, since the penalties
for homicide were fixed by law from time immemorial. It is therefore, we
believe, from the Homeric ἀγορά rather than from the Athenian Heliastic
courts that Euripides received his inspiration for such a proclamation.
Moreover, his description of the composition and of the general procedure
of this Argive court is very Homeric, and reminds us very forcibly of
other archaic pictures in Greek drama, such as the Council of Achaean
chieftains in the _Ajax_ of Sophocles,[62] and the Assembly of the Greeks
who condemn to death Helen[63] and Polyxena.[64] It is a herald who
conveys the death-sentence pronounced by the Greeks against Astyanax,
in the _Troades_[65] of Euripides. Thus we have in this play a strange
mixture of the archaic and the historical. We sometimes feel as if the
Achaean atmosphere had momentarily reappeared in the Draconian age, as
if Homeric heroes had been suddenly transformed into historical Argives,
without, however, having completely divested themselves of their Homeric
usages.

Pollux assures us[66] that at the Athenian Areopagus it was not permitted
to appeal to pity or to indulge in rhetorical persuasion, but it was
necessary for the plaintiff and the defendant to confine themselves
to the issues of guilt or innocence. Similarly, we may assume, at the
Delphinium court no discussion of general principles would have been
admitted, but merely evidential statements of fact. But at the Argive
trial in this play there is no attempt at an investigation of facts. The
speeches are entirely concerned with general principles. It is impossible
to maintain that Euripides is explaining, in this trial, his ideas, based
on contemporary practice, of the manner in which Orestes ought to have
been tried.

Talthybius, the ubiquitous herald, sets his sails to the wind, but he
cannot, unfortunately, decide how the wind is going to blow. He does
not approve of the vengeance of Orestes, because, he says,[67] it
establishes a bad precedent in regard to parents. This viewpoint ignores
the distinction between murder and vengeance. Orestes is conceived as a
matricide, pure and simple, and being a matricide his guilt is greater
than that of Clytaemnestra. It is regrettable, of course, that Agamemnon
was slain, but Clytaemnestra, his slayer, was not his daughter, but only
his wife! The Erinnyes, in Aeschylus,[68] advance a similar argument, but
in the _Orestes_ such reasoning is more logical because the Argive court
interprets the vengeance of Orestes as an act of barbarous vendetta and
assumes that such a mode of vengeance was already obsolete and unlawful
in his time. It is only by assuming that Orestes and Clytaemnestra were
both criminals that one can logically compare the act of Clytaemnestra
with that of Orestes and maintain that the act of Orestes was, because
of blood relationship, more criminal than that of Clytaemnestra. It is
thus that Hesiod,[69] living in an age of chaotic vendetta, would have
singled out for special condemnation the shedding of kindred blood. In
the Aeschylean drama, on the other hand, and therefore, as we think,
in the Attic legends of Orestes, ‘private vengeance’ is not definitely
and dogmatically assumed to have been obsolete and unlawful in the time
of Orestes. There is of course a doubt about the matter such as would
naturally have arisen amongst legend-makers of the transitional seventh
century. This doubt is, naturally enough, availed of by the Erinnyes of
the slain. But Apollo has no doubt about the matter. In the interests of
justice he commands a ‘private’ avenger to avenge.

After Talthybius, Diomedes utters a speech[70] in which he attributes
the guilt of matricide not only to Orestes but also to Electra, and
proposes not indeed that they should be put to death, but that they
should be banished from the city of Argos. He suggests, very curiously,
that the death penalty would be impious! It is difficult to find any
legal justification for this view. It is quite possible that Euripides
is depicting for dramatic purposes, with a complete disregard for law, a
variety of possible penalties. In Attic law a criminal who was convicted
in a matter of grave import was punished by a general penalty of ἄτιμία,
or loss of citizen rights; in some cases, such as parent-slaying,
this degradation of civic status involved death and confiscation of
property: in other cases, such as sacrilege, it involved death without
confiscation; in ordinary wilful murder, it involved either death or
banishment and confiscation, and in cases of malicious wounding the
penalty of ἄτιμία denoted simple banishment without confiscation. It may
be, then, that Euripides is applying such a gradation of penalties[71] to
a period when the penalties for crime were not rigidly fixed.

If we suppose that in this speech of Diomedes Euripides is consciously
archaising, his archaism is not very felicitous. For kin-slaying amongst
Pelasgian clans, we have seen,[72] the normal penalty was exile: for
kin-slaying amongst the Achaeans, the penalty was death. In historical
times, when private vengeance gave place to State execution, the
penalty was invariably death. Hence, Diomedes’ reference to impiety can
become legally intelligible only if it is interpreted according to the
standpoint of the tribal renaissance of post-Achaean days, when the
group-system resumed its sway. From such a standpoint the act of the
Achaean Orestes would have been viewed as matricide by the Elders of
the tribe and in the public opinion of the clans. If a tribal court sat
in judgment on Orestes in, say, the year 1000 B.C. and discussed the
penalty which his act deserved, it would have been natural to suggest the
exile penalty which was the normal punishment for kin-slayers. If then
Euripides has been so very subtle in his archaising as to have attributed
this proposal to the Argive Diomedes, he might at least have selected
for the mouth-piece of this utterance someone whose name was not so
inextricably connected with the Achaean domination!

After Diomedes, there rises up a bold bad man whom the messenger
describes as ‘an Argive who was not an Argive’[73] and who is generally
supposed to typify, in Euripides’ view, the Athenian demagogue
Cleophon.[74] His speech, we are told,[75] had been previously prepared
for him by Tyndareus, who, though the nearest kinsman of the slain
Clytaemnestra, does not speak at all at this assembly! His nameless
subordinate, however, proposed[76] that Orestes and Electra should
be stoned to death. This was the opinion which in a modified form
the assembly ultimately adopted,[77] though only one speaker actually
proposed it. Orestes succeeded in obtaining his request that he, together
with his sister Electra, should be allowed to end their own lives in a
respectable manner.

The penalty of death by stoning is not mentioned in Homer, in Attic law,
or in Plato’s laws. Was it, then, mentioned in an Argive legend or did
Euripides invent it? The penalty may have existed in the antique system
of tribal vengeance. Plato assures us[78] that the slayer of a parent or
a kinsman was stoned, _after death_, by the judges and the magistrates.
This custom was probably a survival of the more primitive custom of
stoning criminals to death. If the Argive legend of Orestes did not
mention such a penalty, Euripides is either archaising on the basis of
this survival or is importing into the drama an idea which he derived
from the crude customs of outlying ‘barbarian’ lands.

The sentence of the Argive court permitted suicide as an alternative to
execution. We do not know of any legal basis for this option. We have no
reason to doubt that suicide was always in practice, if not in theory,
accepted as an alternative for execution in historical Greece. Here,
however, the theory is accepted by a homicide-tribunal.

Before the verdict of the court was given, a nameless man, for whom
Euripides clearly feels much admiration,[79] a small farmer by
occupation, proposed to crown Orestes because he avenged his father by
slaying his impious mother, whose adulterous criminality was fatal, he
said, to the interests of a martial or militaristic society. We have
said[80] that the legal aspect of the vengeance of Orestes is complicated
to some degree by the fact that his mother was an adulteress. We have
argued[81] that death was not the regular penalty for adultery in Greek
tribal life, and we do not think that the Achaeans, like the German
tribes, followed a sterner code. It is difficult to derive any deductions
either in regard to homicide or to adultery from this argument, because
adultery and murder are mentioned in conjunction. The following words of
the nameless speaker[82] seem, however, to imply that adultery required
a more serious punishment than that which custom sanctioned:

    For who in distant fields, at honour’s call,
    Would wield his martial arms if in his absence
    Pollution stains his wife and his pure bed
    Be made a foul sty of adulterous lust?

A similar conjunction of murder and adultery is revealed in the words
of Orestes,[83] who poses as a pioneer in the application of the death
penalty to adultery:

    Ye illustrious Argives ... to vindicate your honour,
    Not less than to avenge my father’s death,
    I did this deed. For should the husband’s blood
    Leave on the wife’s hand no foul stain, full soon
    The purple tide would flow, or you must sink—
    O shame to manhood!—vile slaves to your wives.
    Now she that to my father’s bed was false
    Hath died for it. If you require my life,
    The law hath lost its force: and who shall say
    His own life is secure, as these bold deeds
    From frequency draw force and mock at justice?

In Aeschylus and in Sophocles the only plea of justification which
Orestes advances is the command of Apollo. But in the Euripidean account
of the Argive trial Apollo is not mentioned at all. We cannot explain
this strange fact by supposing that it would have been unprofitable
to refer to him because at the end of the play the decree of Apollo
is accepted without question by the Argives. We cannot suppose that
Euripides, in his conscious archaising, is trying to visualise a
pre-Apolline Court, as he would probably, in such a case, have ignored
Apollo completely and avoided all references to pollution. The most
satisfactory and, to our mind, the most obvious explanation of the
absence of any reference to Apollo at the Argive trial is this: Apollo
appears in the Oresteian legends in the rôle of justifier and purifier.
Such a rôle is consistent only with the conception of Orestes as an
avenger of partial guilt or as an entirely justified avenger. It is quite
irreconcilable with the theory that Orestes was a wilful matricide of
full guilt. Now, the verdict of the Argive court conceived Orestes as a
guilty matricide worthy of death. The only speaker who approves of his
act does so not because he was a just avenger, but because his mother was
an adulteress. To introduce Apollo into a court of this kind would have
been to expose him to ridicule and contempt. Hence the attitude of the
Argives to Orestes, whether invented by Euripides or, more probably, as
we think, enshrined in an Argive legend, made it impossible to connect
Apollo with this Argive trial.

In the above quotation Orestes poses as a pioneer in the stern punishment
of adultery. We have already[84] suggested what we consider to have
been the evolution of the penalties of adultery in Greece. We have
quoted Pausanias[85] for the view that, at first, adultery was leniently
treated. A certain Hyettus, he says, first punished it by death, and
Dracon finally legalised the death penalty, but only for adultery
_in flagrante delicto_. We believe that this plea of Orestes was the
invention of Euripides. Seeing that he could not permit any reference
to Apollo at the Argive trial, he had to invent a new plea. But ancient
law shows no regard for pioneers. Until the law is changed the pioneer
reformer is a criminal. In our opinion, Greek law never adopted the
penalty for adultery which, according to Orestes, it ought to have
adopted.

In this quotation Orestes refers[86] to a law upon which he seems to
rely for his acquittal. ‘If you require my life,’ he says, ‘the law hath
lost its force.’ It is obvious that he is not referring to any law which
the Argives recognise, for otherwise they would have acquitted him. Yet
he suggests that such a law exists somewhere. We cannot suppose that he
is referring to an actual law which prescribed the death-penalty for
adultery, since he is definitely represented, like the nameless farmer,
as endeavouring to persuade the Argives to adopt a code of penalties
for adultery which would be more conducive to martial efficiency than
the existing system. In the _Troades_ the Achaean army conferred on
Menelaus the right to slay the adulterous Helen. But this fact implies
that no existing law would have justified such a slaying. Moreover,
there was nothing in contemporary Attic law or social custom to suggest
to Euripides that murder and adultery in conjunction could be legally
punished by death. Yet the law which Orestes mentions implies the
legality of such a punishment somewhere. We cannot suppose that Euripides
is indicating a contrast between Athenian and Argive legislation, for,
so far as murder is concerned, we believe that their laws were similar.
The explanation which we propose to offer for this peculiar reference is
an alternative one, such as we have suggested in regard to the speech
of Diomedes in the play. We believe that the law which Orestes mentions
is either a pure fabrication of Euripides’ mind, derived from the
supposition that archaic penalties were more severe than the penalties
of contemporary law, or an instance of conscious archaising, in which
Euripides attributes to an Homeric Achaean a discrimination in certain
cases between murder and just revenge. The former alternative is rendered
somewhat improbable by the fact that the Argives do not recognise the
legality of this ‘archaic penalty.’ The latter alternative is therefore
the more probable and suggests, if it is correct, that Euripides
could sometimes be very subtle and, at the same time, successful in
his archaising. According to this theory, Orestes suggests that he is
justified by a law of the Achaean caste. But the Argives, who reflect the
viewpoint of historical social law, reject a plea of justification which
would compel them to recognise the legality of private vengeance.

Between the conclusion of this trial of Orestes at Argos and the
appearance of Apollo as a _deus ex machina_ at the end of the play there
occur some exciting incidents, such as the seizure of Hermione as a
hostage and the murder of Helen[87] by Orestes. Apart from the fact that
Menelaus, her husband, is very angry and vindictive, no one else seems
to take much interest in the death of that famous woman who lived (and
died!) in so many places.[88] The argument used by Pylades to Orestes
in urging the death of Helen is very unscrupulous.[89] ‘Slay Helen,’ he
says, ‘and people will forget that you slew your mother.’ The slaying
of Helen was really murder, but Apollo ignores it. Legally, it does not
exist. Legally, its presence in the _Orestes_ is a grotesque anomaly.
But it has at least this value: it shows us how little Euripides cared
for the legal aspect of a story as compared with its dramatic vitality.
When Apollo comes on the scene, Orestes is in the act of setting fire
to the royal palace at Argos. Orestes’ threats of incendiarism, his
use of Hermione as a hostage, and the murder of Helen have delayed the
doom which was pronounced by the Argives until Apollo comes! But when
he comes,[90] how different is the picture! The conception of Orestes’
vengeance is completely altered. In an instant we pass from wilful
matricide to quasi-involuntary matricide. We breathe once more the
atmosphere of the Attic legend which we find in the _Electra_. Apollo is
not consulted about the problem which had occupied, throughout the play,
the attention of the Argive court, namely the question whether Orestes
pursued an obsolete course of unlawful vendetta and obeyed the dictates
of an Achaean system of vengeance which a later system of social justice
had superseded, or whether he did not. The only problem which confronts
Apollo is the question how he will most easily persuade the Argives, and
the Erinnyes of Clytaemnestra, to recognise the fact that he, Apollo,
commanded Orestes to slay his mother and that, therefore, Orestes’ act
was either justified or at least extenuated.

The contrast in this drama between the attitude which Apollo adopts
in regard to Orestes and the attitude which the Argives adopt is so
obvious and important that the legends which incorporated these attitudes
could never have been reconciled. No Athenian with an interest in legal
problems could ever have thought of them together without mentally
contrasting them. But these legends, namely what we have called the
Argive and the Attic legends, are both found in juxtaposition in this
drama, and Euripides is naturally compelled to make use of Apollo as a
_deus ex machina_ in order to produce a nominal appearance of dramatic
unity. Euripides could not have ignored altogether the Attic legend. He
was an Athenian, not an Argive. The _Electra_ could have been written
without any reference to the Areopagus, but the _Iphigenia in Tauris_
could not. Thus, whether he is condemned or acquitted at Argos, Orestes
must in either event go to Athens! But before he goes to Athens, Orestes
must go into exile for a year in Arcadia.[91] Two problems now arise:
(1) Why is one year the limit of the exile-period? (2) Why is this exile
spent in Arcadia? The first question can only be solved by a reference
to the _Laws_ of Plato. In the _Laws_[92] Plato assures us that there
was a fixed penalty of one year’s exile which was applicable only to the
following homicide cases: (1) involuntary homicide; (2) slaying in a
passion (in which we include quasi-involuntary or extenuated homicide),
if the dying person ‘forgave’ his slayer; and (3) quasi-involuntary
kin-slaying, if the slayer was ‘forgiven.’ Of these three possible
cases, only the last can be relevantly[93] applied to the slaying of
Clytaemnestra by Orestes. Legally therefore it is necessary to regard
the act of Orestes as quasi-involuntary matricide if we wish to explain
the penalty which Apollo decrees at the end of the play. When Orestes
has served a period of one year’s exile, he will be ‘acquitted’ by
the Areopagus.[94] We cannot interpret this acquittal as a verdict of
‘not guilty,’ since on this assumption the preliminary penalty of one
year’s exile becomes either meaningless or unjust. It is a curious kind
of ‘acquittal,’ since it is intended to imply that a certain degree
of guilt has now been sufficiently atoned. In the Attic homicide-code
there is no reference to an acquittal of this kind, but Plato mentions
something which suggests that such an acquittal was a legal possibility.
Speaking of extenuated homicide, Plato says[95] that ‘when the period
of exile shall have expired, it is right to send twelve judges to the
borders of the State that ... they may judge of the pity to be shown and
of the return (of the exiles to their home-land).’ Now Apollo in this
play says[96] that Orestes will be tried by gods, not by men, at Athens.
Demosthenes gives the tradition more explicitly when he says[97] that
‘the twelve gods judged between Orestes and the Erinnyes.’

We have said that there were two Attic legends of Orestes, that one of
these represented him as tried by the Areopagus on a plea of justifiable
matricide, and the other, on a plea of quasi-involuntary matricide. There
is some difficulty involved in connecting the Areopagus with either of
these pleas. In regard to the first we must assume that the Areopagus in
early times tried pleas of homicide between strangers which were normally
tried by the Delphinium. In regard to the second plea, we suggest that it
is necessary to suppose that the ancient Areopagus would have tried pleas
of involuntary and quasi-involuntary homicide which normally came under
the jurisdiction of the Palladium court and of minor local courts. It is
therefore, we must assume, in the unusual rôle of a reconciling court
that the Athenian Areopagus ‘acquitted’ Orestes in the ‘second Attic
legend.’ That he was not satisfactorily ‘acquitted’ will be manifest[98]
when we discuss the _Iphigenia in Tauris_. Orestes had to leave Athens
and to undergo still further wanderings as an exile, because all the
Erinnyes did not recognise his ‘acquittal.’ We have already suggested[99]
that the Erinnyes in the Oresteian legend frequently symbolise the
conflict of opinions which sometimes preceded the consent of the
relatives of the slain to accept ‘appeasement’ in cases of involuntary
and quasi-involuntary homicide. The court to which Plato refers in the
passage cited above was a ‘court of reconciliation.’ The ‘twelve judges’
whom Plato mentions may have been suggested by the ‘twelve gods’ who
judged between the Erinnyes and Orestes. Such myths and such ‘courts of
reconciliation’ made it possible, we believe, for the creators of the
‘second Attic legend’ to connect Orestes with the Areopagus.

It is not easy to explain why Euripides selected Arcadia as the place of
exile for Orestes. First of all, there seems to have existed an Arcadian
variant of the Oresteian legend which associated Orestes with Arcadia
and maintained that he actually died there.[100] One of the Arcadian
towns was called, from Orestes, ‘Oresteum.’ Again, it is possible to
suppose that Euripides, who, in this drama, reveals a certain desire for
originality, should have selected Arcadia because Aeschylus and Sophocles
had exalted the association with Orestes of Athens and of Phocis, and
had entirely ignored Arcadia. But there may also have been a religious
or quasi-legal fact behind this idea of Euripides. We have seen that,
in Attic law,[101] a homicide-exile was debarred (_a_) from his native
place, (_b_) from the country of the slain, (_c_) from the State in which
the deed took place. The basis of these legal facts was sentimental or
religious. It was supposed that the spirit of the slain was not merely
intolerant of the presence of the slayer in civic proximity to his
burial-place, but was also indignant at the thought that the slayer
should be enjoying himself, as it were, and not suffering any real
hardships as a punishment for his crime.[102] Now, Argos was of course
forbidden ground to the exiled Orestes. But one legend said that he had
lived in Athens, another that he had lived in Phocis, before he slew his
mother. In these places he had made friends and companions. In these
places exile would not have involved for him sufficient hardship and
suffering. Arcadia, however, held no attraction for Orestes, and hence it
was to Arcadia that the Erinnyes of Clytaemnestra desired that he should
go.

We can therefore, in the light of these conclusions, understand in their
full meaning the words of Apollo to Orestes[103]:

                                    Thou, Orestes,
    Quitting this country, in Parrhasia’s plains
    For one revolving year thy dwelling fix,
    And give the place thy name: that honour share
    With Azan and with Arcas. Pass from thence
    To Athens: there against the Furies urge
    Thy plea; acquit thee of thy mother’s blood:
    There in that awful court the gods shall sit
    Thy judges; and thy just cause shall prevail.

After the lapse of a single year and after his ‘acquittal’ by the
Areopagus, Orestes may again return to the city of Argos. This return is
announced prophetically by Apollo to Menelaus, when he says[104]:

    Thou, Menelaus, yield that Orestes reign
    In Argos: haste to Sparta, reign thou there....
    It shall be mine t’ appease the State to him,
    Compelled by my command to slay his mother.


THE PROBLEM OF PYLADES

We may now consider a problem concerning Pylades which is presented by
this drama. As in Aeschylus and in Sophocles, so in Euripides, Pylades
co-operates with Orestes in avenging Agamemnon. But in Euripides the
guilt of Pylades is more clearly emphasised. Hence, we hear for the first
time that he is punished. He tells Orestes[105]:

    My father in his rage hath banished me.

We saw that in Greek law the plotter, the co-operator, was as guilty
as the actual slayer.[106] Hence the problem of Pylades’ guilt depends
on that of Orestes’ guilt. If therefore Strophius, the King of the
Phocian land, punishes Pylades _pendente lite_,[107] we attribute this
to the autocratic power of a king on the one hand, and on the other to
the general principle of Greek law that an accused person was presumed
to be guilty until he had established his innocence.[108] Now, in the
_Electra_[109] Castor and Pollux declare that Electra will marry Pylades
and that he will take her to his home, but there is a suggestion that a
brief period of time, probably one year, must elapse before this event
takes place. We presume that he would be permitted by his father to
return, in obedience to the divine decree. In the _Orestes_ he is still
an exile from his home, as the guilt which he shares with Orestes has not
yet been atoned by exile. But has he any legal right to remain in Argos?
Orestes warns him that his life is in danger there, but Pylades replies
that the Argives have no power to punish him[110]:

    They have no right: I am no subject here.

Which of these opinions is correct—that of Orestes or that of Pylades? We
have shown[111] that, in Greek law, accused and convicted slayers were
debarred from three possible States, of which one was the State of the
deceased. Demosthenes says[112]: ‘The boundary-line for all homicides is
exclusion from the country of the deceased ... from everything in which
the deceased in his lifetime had a part.’ We cannot of course suppose
that this law applied to unconvicted slayers, but we may presume that
they were at least debarred from the temples and the public places of
the State. Hence we can reconcile these two opinions by assuming that
Orestes is referring to the public aspect and Pylades to the private
aspect of residence at Argos. When Pylades asserts that he deserves
to suffer at Argos,[113] he is referring to the period which follows
the trial of Orestes, which involved, we presume, a condemnation of
Pylades. Menelaus asks if Pylades had a share in the slaying of Helen,
and leaves us in no doubt that his life is forfeit in Argos.[114] We
have quoted[115] Plato in support of the assertion that strangers were
liable to more serious penalties for homicide than natives were. But
this assertion only applies to convicted slayers. Hence it is possible
to accept the suggestion of Euripides that Pylades was not imprisoned at
Argos, as Orestes was, and that he visited Phocis before the trial of
Orestes.


THE PROBLEM OF ORESTES’ POLLUTION

From what has been said it will be obvious that Orestes is more
‘polluted’ in Euripides than he is in Aeschylus or in Sophocles. The
‘pollution’ of a person who was conceived as guilty of wilful and
unjustified matricide was the greatest and the most horrible kind of
‘pollution,’ and it is this conception of Orestes which predominates in
this Euripidean drama. At the end of the play the pollution of Orestes
is miraculously diminished. This is because Orestes is here conceived
not as a wilful matricide of full guilt, but as a quasi-involuntary
matricide who transfers the main portion of his guilt to Apollo. In Greek
law an extenuated act of homicide produced, even when the dying person
‘forgave,’ a minor temporary ‘pollution,’ which continued until the
slayer had endured a minimum period of one year’s exile and had appeased
the relatives of the slain. During this period of exile the slayer had to
abstain from three possible States, which we have already defined. But a
kin-slayer was in a peculiar position. Until the fact of involuntariness
was established before a court he was liable to be regarded as polluted
wherever he went. In Arcadia Orestes was not ‘polluted,’ according to
Euripides, perhaps because Apollo commanded him to go there, perhaps
because his residence there did not create any special anger on the part
of the slain Clytaemnestra. But in Argos he would have been polluted,
because Argos was his native State and could not therefore have been for
him a place of exile even if he had been guilty of involuntary homicide,
and not, as he was, of involuntary kin-slaying. In Athens, too, he would
have been regarded as polluted until he had been tried, especially if he
was accused (as he was accused, by the Erinnyes) of wilful kin-slaying;
but his pollution would have been that of an untried criminal, and
therefore public rather than private. We shall see in the _Iphigenia
in Tauris_ that he was, in a certain sense, polluted when he came to
Athens for his trial, and the Athenians based upon this ‘pollution’
an explanation of a peculiar ritual of which the origin was obscure,
namely the Feast of the Pitchers (χόες) at the Anthesteria.[116] Now in
Aeschylus and in Sophocles the predominant conception of Orestes is that
of an unconvicted matricide who pleads justification for his act; and if
we find, in addition, the conception of Orestes as a quasi-involuntary
matricide, this does not affect to any great extent the question of
Orestes’ pollution, because Orestes has already atoned for the guilt of
extenuated matricide. He has actually been purged by Apollo himself, and
he is still, so far as Athens is concerned, untried and unconvicted,
and therefore his pollution is minor and merely ‘public’—that is, he is
forbidden to frequent the temples or public places but he is free to
associate privately with his fellow-men. In Euripides, however, Orestes
is convicted of wilful matricide by an Argive court. His pollution is
therefore technically so great that no Greek city could receive him.
If his pollution is subsequently reduced to the minor pollution of
involuntary kin-slaying, this is only because Apollo acts not as a
purifier, but as a dramatic _deus ex machina_ who does miraculous and
impossible things.

Wedd, in his edition of this play, proposes a strange explanation for
the graver pollution of the Euripidean Orestes, which is based, as we
think, on a false interpretation of the dramatic ideals of Euripides.
‘In Sophocles,’ he says,[117] ‘all men will honour Orestes, in Aeschylus
he is welcomed as a deliverer, in Euripides the whole State rises up in
horror against him ... in Aeschylus, although Orestes flies for his first
purification to Apollo, many others aid in freeing him from guilt and
he associates with thousands in harmless intercourse; in Euripides all
doors are shut against him, all speech is denied him, none will perform
the purifying rites for him; the full rigour of Athenian law, which
refused to the parricide alone among murderers the right of escaping
death by flight, is exercised against him ... the attitude of the whole
State towards the matricide, the feeling of the murderers themselves
with regard to their own act, are precisely what would be expected if
in modern (? fifth century B.C.) Athens two children were induced by
an oracle to take the law into their own hands and put their mother to
death.’

This account of the facts is fairly accurate, but it suggests that the
Euripidean Orestes is a definite unitary personality, whereas we have
shown that there are at least two different conceptions of Orestes in
this play. The ‘full rigour of Athenian law’ is certainly apparent in the
Argive verdict, but Wedd assumes that Euripides, in this play, adopted
towards Orestes an attitude which ignored Homer and the Attic legends
made familiar by Aeschylus and Sophocles, and which paid no attention
to Apolline decrees. In this respect the account is misleading. It
is based on an erroneous conception of Euripides. According to Wedd,
Aeschylus and Sophocles adopted towards Greek legends an attitude
which was quite different from that which Euripides adopted. These two
dramatists accepted, he thinks, the legends in their main outline and
sought to reproduce them as far as possible in their archaic setting,
with the least possible admixture of ‘historical’ ideas. Euripides, on
the contrary, adopted a critical attitude to the myths and made it his
object _not_ to reproduce them for their own sake but to contrast them
with the more enlightened feeling of his own time. This interpretation
of Euripides is very similar to that of Jevons which we have already
discussed.[118] The arguments which we adduced against Jevons are
therefore applicable to Wedd, but we offer here an additional criticism
which is more definitely concerned with the _Orestes_ drama.

According to Wedd’s hypothesis, the trial of Orestes at Argos which
is described in this play contains the Euripidean conception of the
manner in which the myth should have regarded Orestes. We admit that
the viewpoint of the Argive court is in the main historical; by an
anachronism it identifies the world of Orestes with that of the Argives
of the historical era.

But the existence of an Argive legend which despite its lack of
archaism[119] was of considerable human interest would explain Euripides’
description of such a trial. The fact that at the end of the play[120]
the resultant verdict of the trial is ignored and reversed suggests
rather that Euripides regarded the Attic legend as more archaic and
therefore more correct than the Argive legend. We have already[121]
pointed out that the Messenger’s description of the trial and the
opinions of some of the speakers at the trial are more suggestive of the
dramatist’s own views than is the verdict of the Argive court. According
to Wedd, the _real myth_ occurs at the end of the play, and the rest of
the play is the invention of Euripides. Euripides did not agree with the
mythical presentation of Orestes, so he invented a new version which he
deliberately set in emphatic contrast to the obsolete Attic myth! In
our view, Euripides reproduces two pre-existing legends—an Attic and an
Argive legend of Orestes. The Argive legend he regarded as more dramatic,
the other as more orthodox but less replete with human interest.
According to Wedd, the graver pollution of the Euripidean Orestes is due
to the fact that Euripides conceived him as a fifth-century Athenian. For
us, the different degrees of pollution in Orestes are due to different
conceptions of Orestes’ guilt or to the different legal and religious
attitudes of the legends which the dramatists followed. They are not to
be attributed to any distinction in the attitude of the dramatists to the
legends themselves. The contrast is in the legends, not in the dramatists.


THE ERINNYES IN EURIPIDES

The conception of the Erinnyes in this play is naturally different from
the Aeschylean and Sophoclean conceptions. It is similar to but not
identical with the picture of these goddesses which we shall find in the
_Iphigenia in Tauris_.[122] It is, however, erroneous to suppose that
the Furies who in this play assail Orestes are conceived by the dramatist
as the subjective delusions of a madman. In our opinion, the Erinnyes in
Euripides, though not actually brought upon the stage, are as real and as
vital as the Erinnyes of Aeschylus.[123] If the psychical effect which
these goddesses produce upon Orestes is greater in Euripides, this is
because the Erinnyes stand, so to speak, like vultures beside their prey,
since the Argives are about to condemn him to death, and because Orestes
is conceived as irremediably polluted, a victim already ‘devoted’ to the
Erinnyes. Hence, naturally, at Argos Orestes feels that he is powerless
to struggle against the Erinnyes; his insight into the immediate future
and his contemplation of his approaching fate deprives him, temporarily,
of sanity and self-control. We must not suppose that a more tender or
more civilised and ‘modern’ Orestes realises his guilt more keenly
than does the archaic Orestes of Aeschylus, nor must we imagine that
this feeling of remorse and self-contempt produces the mental insanity
which creates a more hideous Erinnys. On the contrary, Orestes is here,
as elsewhere, subjectively innocent. He admits no moral guilt. If the
legend insists that he is guilty, if the public opinion of the Argives
decides to punish him with death, he does not admit the validity of this
conception or of the decision, but nevertheless his fear of the Erinnyes
naturally increases, since in death even more than in life can these
titanic monsters torture the slayer. Aeschylus makes them say[124]:

    It is our fate to track the steps of men
    By murderous wantonness polluted, till
    Beneath the earth they pass, nor yet for them
    Can death grant freedom from our power.

It is Orestes’ fear of such titanic monsters waiting to inflict on him
unspeakable punishment that makes him cry out in this Euripidean drama:

    Ah! mother, do not set thy Furies on me.
    See how their fiery eyeballs glare in blood,
    And wreathing snakes hiss in their horrid hair!
    There, where they stand, ready to leap upon me....[125]

And again:

    O Phoebus, they will kill me, those dire forms,
    These Gorgon-visaged ministers of hell.[126]

The conflicting attitudes of the Erinnyes of Clytaemnestra and the
Erinnyes of Agamemnon which we found in the _Choephoroe_ of Aeschylus are
also revealed in this play. Speaking of his father’s Erinnyes, Orestes
says[127]:

    Had I in silence tamely borne her deeds,
    Would not the murdered, justly hating me,
    Have roused the Furies to torment my soul?
    Or hath she only her assisting fiends
    And he no fav’ring power t’ avenge his wrongs?

We shall meet the Erinnyes of Clytaemnestra in a somewhat similar rôle
in the _Iphigenia in Tauris_. But in that play the Erinnyes are not
united in their conception of Orestes as they are here. Those Erinnyes
who refuse to accept the ‘acquittal’ of Orestes by the Areopagus continue
to pursue him to the Tauric Chersonese. When Orestes sees them he cries
out[128]:

                  Dost thou behold her, Pylades,
    Dost thou not see this dragon fierce from hell—
    Rushing to kill me, and against me rousing
    Her horrid vipers? See this other here
    Emitting fire and slaughter from her vests,
    Sails on her wings, my mother in her arms
    Bearing, to hurl this mass of rock upon me!
    Ah, she will kill me! Whither shall I fly?

The important thing to remember about the Euripidean Erinnyes is that
they are real goddesses, not mental fictions. The Furies of the ‘Argive
Scene’ are the Furies who pursue the criminal convicted of wilful
matricide. For him there is no cleansing. To him no land can offer
the shelter of its protection. ‘Alone, he has arrayed against him the
universe.’[129] Sooner or later he will be put to death and will be
delivered into the hands of the Erinnyes. But in the Attic legend Orestes
is not a wilful matricide. Hence the Erinnyes of the _Iphigenia_ drama
are not so implacable as the Erinnyes of the _Orestes_. They are placated
by the simple device of transferring an image of Artemis from the Tauric
land to Athens!


THE ‘IPHIGENIA IN AULIDE’ AND ‘IPHIGENIA IN TAURIS’

A comparison of these two dramas reveals at first sight a rather obvious
inconsistency. The Aulid play centres round Agamemnon’s sacrificial
slaying of his daughter at Aulis, while in the Tauric play the victim
reappears as a priestess of Artemis amongst the Tauri! It is generally
maintained that the last scene of the Aulid play, which describes the
substitution of a stag for the maiden by a miraculous intervention, is
not the work of Euripides. But in the _Orestes_ Apollo intervenes to
preserve the life of Helen, though he can do so only by deifying her!
In the Aulid play, also, Iphigeneia is said to have been saved from
death by deification.[130] In the Tauric drama, however, the daughter of
Agamemnon has once more assumed a mortal form and appears as a priestess
of Artemis among the Tauri. Nowhere else in Euripides can we find such
a magical atmosphere. If the human Iphigeneia was really saved, would
we not expect that her father and her mother should have been informed
of her deliverance? But they both believe that she is dead.[131] The
plea which Clytaemnestra advances in the _Electra_ of Euripides,[132]
namely that the death of Agamemnon was a revenge for the death of her
daughter, is based upon the reality of her death. Hence we think that
Euripides reproduced both these legends of Iphigeneia simply because of
their human interest and dramatic merit, without any special concern for
their consistency. It is clear that Euripides did not invent the Aulid
story, since it is found in Aeschylus[133] and in an epic poem,[134]
entitled the _Cypria_, of post-Homeric date. The Tauric story is not
found in any previous author, but we do not think that it was invented
by Euripides. Both legends suggest a similar source. Two hundred years
before Euripides[134] it was said that Iphigeneia was made immortal by
Artemis, who brought her from Aulis to the Tauri, and substituted for
her a stag-victim. As soon as Iphigeneia became a goddess she could,
like other goddesses, be easily transferred from place to place by a
simple transference of images. Herodotus says[135] that the goddess to
whom the Tauri sacrificed was Iphigeneia the daughter of Agamemnon. The
word ‘Iphigeneia’ was apparently a cultus epithet of Artemis[136] which
signified her connexion with fertility and her influence on the birth
of men and animals. The real as distinct from the legendary deification
of Iphigeneia was therefore due to the abstraction and personification
of a cultus epithet. The existence of a temple of Artemis-Iphigeneia
at Aulis, whence Agamemnon sailed to Troy, and the similarity of the
name Iphigeneia with Iphianassa (the Homeric name for a daughter of
Agamemnon), led to a belief in the deification of Iphianassa at Aulis.
Moreover, the survival at Halae, in Attica, in historical times of a
mock ritual of human sacrifice to Artemis induced the further idea that
Iphianassa had been deified through sacrifice at Aulis. The existence
at Halae of a statue of Artemis believed to have been brought from the
Tauric land, and the existence there of a temple to ‘the maiden’ at which
real rites of human sacrifice were enacted, explain the origin of the
Tauric belief which is referred to by Herodotus. Iphianassa, identified
with Iphigeneia, becomes a goddess among the Tauri, and Iphigeneia is
worshipped as the daughter of Agamemnon! The final transition to the
stage in which Iphigeneia returns to life as a priestess of Artemis at
Tauri is explained by reference to the ancient tendency to identify
the priest with the god and by the ritual of resurrection or re-birth
which is found in ancient fertility-religion. England[137] thinks that
this stage was probably pre-Euripidean but that the story of Orestes’
visit to the Tauri was invented by Euripides. We do not think that even
this story was of Euripidean origin. It belongs rather, we think, to
the legends of the wandering of Orestes, which conceived him as guilty
of extenuated or quasi-involuntary matricide which was ultimately
‘forgiven.’ When Iphigeneia was conceived as a priestess of Artemis and
at the same time as the sister of Orestes, the evolution of a story which
described Orestes’ visit to the Tauri does not, we think, require the
genius of Euripides. Again, the inconsistencies of this story with the
Aulid story which he has dramatised, with arguments which he introduces
in the _Electra_[138] and with other legends of Orestes, such as the
Arcadian legend, and, moreover, the insult to Apollo, the degradation
of Athene, and the exaltation of Artemis which this story involves—all
suggest a local origin for the story and the inspiration of theocratic
legend-makers rather than the invention of a dramatist.

In the _Iphigenia in Aulide_ the sacrifice of Iphigeneia is condemned
as murder not only by Clytaemnestra[139] but also by Achilles,[140]
whose promised marriage with Iphigeneia was the bait by which legend
lured her from her Argive home. This view, we have said,[141] belongs
to an age which has rejected human sacrifice and which interprets all
the traditional systems of blood-vengeance as unrestricted hereditary
vendetta. It belongs therefore to the border-line between the Dark Ages
of Greece and the civilised historical era. From the legal point of view
Clytaemnestra’s plea has no validity; we see in it rather a counterpart
to the plea of justification which Orestes based on the command of
Apollo. If Orestes claims the command of Apollo as a justification and if
this claim is disputed, then the command of Artemis to Agamemnon may also
be impugned. Artemis has the same right to obedience as Apollo has. If
the Furies of the dead Clytaemnestra rejected the Apolline oracle, it was
natural that the living Clytaemnestra should have repudiated the justice
of the decree of Artemis at Aulis.

The _Iphigenia in Tauris_ merits special consideration from our present
point of view. As the general _dénouement_ of the plot is sufficiently
familiar, we shall proceed _in medias res_. We may confine our comments
to the speech delivered by Orestes to Iphigeneia after their mutual
recognition. Omitting for the moment Orestes’ reference to the Athenian
custom of using separate drinking-cups on the Libation-day of the
Anthesteria festival, we will give first Orestes’ description of his
trial at Athens and of its immediate sequel. It will be noted that he
has already served a period of exile before he reaches Athens and
that the verdict of the Areopagus is not accepted by all the Erinnyes.
We have suggested[142] that the Erinnyes symbolise in this legend the
attitude of the relatives of the slain and that the Areopagus acts as a
court of reconciliation rather than as an ordinary homicide court. We
have seen that the relatives had always a theoretical right to refuse
to accept ‘appeasement’ in cases of involuntary homicide, according to
the Draconian law, ἁπάντας ἢ τὸν κωλύοντα κρατεῖν: ‘let all be appeased
or let one objector hold the field.’[143] We cannot suppose that the
Erinnyes of Clytaemnestra in this play assume the same attitude to
Orestes as they assume in the _Eumenides_ of Aeschylus, for in Aeschylus
the conversion of the Erinnyes signifies acceptance of the plea of
justifiable matricide. Neither is their attitude to be compared to that
of the Erinnyes of the Argive scene in the _Orestes_, for there they
conceive Orestes as guilty of wilful matricide. Their attitude here is
rather that of the ‘second Attic legend,’ in which Orestes is conceived
as a matricide of partial guilt—his crime being conceived as extenuated
by Apollo’s command. According to this assumption we can explain the
conflict of opinion which characterises the Erinnyes. It is derived from
a legendary conception of the Erinnyes as the symbols of the relatives of
the slain Clytaemnestra who are presumed to have refused ‘appeasement’
and to have resisted the verdict of the Areopagus, which was conceived as
a court of reconciliation rather than as a high State court adjudicating
with full authority on questions of guilt or innocence. Orestes says:

            When vengeance from my hands o’ertook
    My mother’s deed—foul deed which let me pass
    In silence—by the Furies’ fierce assaults
    To flight I was impelled: to Athens then
    Apollo sent me, that, my cause there heard,
    I might appease the vengeful powers whose names
    May not be uttered. The tribunal there
    Is holy, which for Mars when stained with blood,
    Jove in old times established ...[144]
    ... when to the tribunal on the mount
    Of Mars I came, one stand I took, and one
    The Eldest of the Furies opposite:
    The cause was heard touching my mother’s blood,
    And Phoebus saved me by his evidence;
    Equal, by Pallas numbered, were the votes,
    And I from doom of blood victorious freed
    Such of the Furies as there sate, appeased
    By the just sentence, nigh the court resolved
    To fix their seat: _but others whom the law_
    _Appeased not, with relentless tortures still_
    _Pursued me_, till I reached the hallowed soil
    Of Phoebus.[145]

But Orestes’ visit to Delphi merely suspends, it does not terminate,
the pursuit of the Erinnyes. At this point the religious rather than
the legal aspect of the Erinnyes comes into prominence, and what may be
described as a magical mode of appeasement is indicated by Apollo when he
commands Orestes to visit the temple of Artemis among the Tauri, to bring
back with him the image of the Tauric Artemis and to deposit it in an
Attic temple. Orestes says to Iphigeneia:

                      From the golden tripod burst
    The voice divine, and sent me to this shore,
    Commanding me to bear the image hence
    Which fell from Jove, and in th’ Athenian land
    To fix it.... If we obtain
    The statue of the goddess, I no more
    With madness will be tortured.[146]

Here we breathe the atmosphere of religious expiation rather than of
legal atonement. The origin of this oracular command may be attributed
to Attic priests of Artemis, for in the temple at Halae there was an
image which was believed to have been brought from the Tauri.[147] This
expiation was not in any real sense ‘purgation,’ but it was sufficiently
similar in character to be readily confused with it.[148] We are reminded
of the expiatory sacrifice offered at the altar of the Erinnyes or
the Semnai Theai at the Areopagus by persons who had been acquitted
of homicide at the Areopagus court and by involuntary slayers who had
returned from exile.[149] We may recall also the expiatory festival
which Medea instituted at Corinth after she had slain her children and
put to death the King of Corinth and his daughter.[150] In this play a
mock ceremonial of purgation is performed in connexion with Orestes by
Iphigeneia. She says[151]:

    The strangers come, the sacred ornaments,
    The hallowed lambs, for I with blood must wash
    This execrable blood away, the light
    Of torches, and what else my rites require
    To purify these strangers to the goddess.

It will seem curious that Thoas, a barbarian king, should admit the
necessity for such a ceremony, seeing that in the _Andromache_[152]
Hermione is made to say

    Such is the whole abhorred barbarian race.
    ... friends by their dearest friends
    Are murdered: deeds like these no wholesome law
    Prohibits.

We shall see presently[153] that this sentiment was the outcome of
Hermione’s emotional attitude to the Trojan Andromache.


ORESTES AND THE PITCHER FEAST

The suggestion of Orestes that his ‘pollution,’ when he reached the
Attic land, was the origin of the Attic rite which prescribed the use of
separate cups on the second day of the Anthesteria is of interest as an
illustration of what is known as the aetiological myth. Orestes says to
Iphigeneia[154]:

                            There arrived,
    None willingly received me, by the gods
    As one abhorred: and they, who felt the touch
    Of shame, the hospitable board alone
    Yielded, and though one common roof beneath,
    Their silence showing they disdained to hold
    Converse with me, I took from them apart
    A lone repast; to each was placed a bowl
    Of the same measure: this they filled with wine,
    And bathed their spirits in delight. Unmeet
    I deemed it to express offence at those
    Who entertained me, but in silence grieved,
    Showing a cheer as though I marked it not,
    And sighed for that I shed my mother’s blood.
    A feast, I hear, at Athens is ordained
    From this my evil plight, e’en yet observed,
    In which the equal-measured bowl then used
    Is by that people held in honour high.

Euripides is not our only authority for such a myth. Its existence is
confirmed by Athenaeus[155] and by Suidas.[156] It is not probable that
Euripides himself invented it. At the Libation-feast which was known
as the ‘Cups’ (χόες) an unusual custom decreed that each man should
drink from a separate goblet and forbade any suggestion of collective
drinking such as attached to the ordinary wine-bowl. The Athenians did
not understand the real origin of this rite. In the strange blending
of joy and sorrow which characterised this Dionysiac festival, they
overlooked the connexion which existed between the public civic offering,
at this festival, of libations to dead ancestors of the citizens as a
whole and the primitive tomb-offerings (χοαί) of tribal ancestor-worship.
Coulanges has indicated[157] the private, individual, or domestic nature
of such tomb-offerings. He goes so far as to suggest that the origin
of private ownership in land is to be attributed to the exclusive and
non-communistic character of primitive ancestor-worship. Even in Solon’s
time the laws defined rigidly the limit of relationship to the deceased
which permitted a relative’s presence at the funeral.[158] The worship
of Dionysus had many affinities with the worship of the dead. It is in
such affinities that we must seek, in the last resort, the explanation
of the gloom and morbid mourning which permeates all Greek tragedy. But
we cannot suppose that the Dionysiac festival was able to import an
aspect of civic communism into the essentially local and tribal ritual
of tomb-libations. Hence, we believe a compromise was accepted in which
men were permitted to drink together at a public libation-festival but
were compelled to drink from separate vessels and to sit at separate
tables! Such, we believe, was the real origin of this strange rite. But
the Athenians, who were ignorant of its true origin, sought to find for
it at least an intelligible explanation. They knew from the Attic legends
of Orestes that this Argive prince had come to Athens for his trial. They
knew that a kin-slayer who had not yet been tried and declared innocent
was ‘polluted’ with a minor kind[159] of pollution wherever he went. His
purgation by Apollo was legally valid for Phocis if an Apolline court
had declared him innocent. But in the Attic legends he was untried and
therefore unpurged. They argued therefore that when Orestes came to
Athens to submit to trial on a charge of kin-slaying, he was prohibited
from public civic and religious communion with Athenian citizens. It does
not matter in this connexion whether the plea of Orestes was justifiable
matricide or extenuated matricide. As he had been proclaimed as an unjust
slayer by the avengers, who in this case were the Erinnyes, he was
‘polluted’ until he had either established his innocence or indicated
the completion of his atonement to a court of reconciliation. Now
‘pollution’ was regarded by the ancients as a disease of a quasi-physical
nature. Murder courts had to be held, even by night, in the open air.
The ‘polluted’ man could not enter the temples or the market-place. He
could not eat at anyone’s table. He was isolated from public life. His
civic existence was suspended. If, then, it be supposed that Orestes
arrived for his trial at Athens during the Anthesteria festival, he
could not have been received into civic or religious communion. Hence
the creators of this myth could quite naturally have conceived that a
compromise was agreed upon by which the Athenians preserved, on the one
hand, their reputation for hospitality, and respected, on the other, the
religion of pollution. They admitted Orestes to the public feast, but
they insisted that he should sit apart and drink from a separate vessel!
It was thus that the Athenians explained the origin of this rite: nor is
the explanation to be regarded as ‘anomalous’ or ‘artificial,’ as Miss
Harrison suggests.[160] To people who were ignorant of the real origin
of the Pitcher Feast, this was at least a respectable and intelligible
aetiology.

Orestes says to Iphigeneia that he had some difficulty in refraining
from rebuking his hosts on this occasion.[161] Miss Harrison’s
explanation[162] of this statement is that Orestes was mad! But we
are convinced that Orestes was not mad, either at Athens or amongst
the Tauri, though he may have been temporarily insane amongst the
Argives.[163]

We have seen that there were conflicting opinions concerning the guilt of
Orestes in different legends. The predominant opinion in Aeschylus and in
the legend (probably Phocian) which referred to his purgation by Apollo
suggests that his act was justified. The Argive legend which we have met
in the _Orestes_ of Euripides conceived his act as wilful matricide which
involved an eternal pollution. But the prevailing conception of Orestes’
act which we find in the legends of post-Homeric times regards him as
guilty of matricide extenuated through Apollo’s command. The dramatic
attempt to unify these various legends is the source of the complexity of
the problem of Oresteian blood-vengeance in Euripides. It is impossible
to analyse successfully the legal and religious position of a hero who
is tried and who is at the same time untried, who is eternally and who
is at the same time temporarily polluted, in one and the same drama! But
the myth of the Pitcher Feast was based on a well-defined tradition. It
ignored the Argive and the Phocian legends, it ignored also what we have
called the first Attic legend, and it considered only the second Attic
legend from which the _Iphigenia in Tauris_ drama was ultimately derived.

The surprise which Orestes feels at the partial social boycott which
confronts him in Athens is, we think, to be attributed to the coexistence
of the Attic and the Phocian legends. In the Phocian legend Orestes was
tried and purged, therefore he could visit any Greek city with impunity.
But the Attic legend suggested that this purgation, though valid for
Phocis, could not be accepted by the Athenians, so long as the avenging
Erinnyes pursued, until Orestes had been acquitted by an Athenian court.
This conflict of legendary view-points explains, we believe, the
divergence of opinions which is suggested by these words.


THE ‘PHOENICIAN MAIDENS’ AND THE ‘SUPPLIANTS’

The homicide-problems of the _Phoenissae_ and of the _Supplices_ may be
simultaneously discussed, as both these dramas are concerned with the
war of the Seven against Thebes. The dramas correspond in their general
atmosphere and in regard to the problems which they present with the
_Septem_ of Aeschylus or the _Antigone_ of Sophocles. We also find an
incidental reference[164] to the punishment of Oedipus which recalls the
_Oedipus at Colonus_ and the _King Oedipus_ of Sophocles. Euripides,
in his account of the conflict which took place between Polyneices and
Eteocles and of the war between the Argives and the Thebans is, from
a legal point of view, more satisfactory than his brother dramatists,
inasmuch as he makes a clear distinction between the different aspects
of the problem of burial in both cases. Polyneices may or may not have
been a fratricide and a traitor,[165] but the Argives at least were
legitimate belligerents. In the _Antigone_ these two issues seem to have
been deliberately confused. The burial of the Argives was a question for
Greek international law, the violation of which brought down upon the
offenders the anger of the gods. The burial of Polyneices was a more
delicate question, upon which the gods might adopt divergent attitudes.
Teiresias, in the _Antigone_, does not differentiate very clearly between
the religious aspects of these two problems. The gods were angry—about
that there was no doubt. But might not this anger have been mainly, if
not entirely, due to the non-burial of the Argives? Here are the words
addressed by Teiresias to Kreon[166]:

                          And this evil state
    Is come upon the city from thy will:
    Because our altars—yea, our sacred hearths,
    Are everywhere infected from the mouths
    Of dogs or beak of vulture that hath fed
    On Oedipus’ unhappy slaughtered son.

Kreon is unmoved by this declaration, which he regards as the outcome of
bribery and political corruption.[167] But Teiresias now utters words
which strike terror into Kreon’s heart[168]:

    A little while, and thine own palace-halls
    Shall flash the truth upon thee with loud noise
    Of men and women, shrieking o’er the dead,
    And all the cities whose unburied sons,
    Mangled and torn, have found a sepulchre
    In dogs or jackals or some ravenous bird
    That stains their incense with polluted breath,
    Are forming leagues in troublous enmity.

Now, Euripides, on the other hand, keeps these two questions clearly
distinct. The burial of the Argives, being an international question, is
referred by Adrastus to Theseus,[169] King of Athens. At first Theseus
refuses to intervene, and rightly, since Athens was merely one of a
number of Greek States, and she did not wish to undertake single-handed
a war which was properly an Amphictyonic war. But ultimately Theseus,
yielding to the persuasion of his mother and of Adrastus, fought and
defeated the Theban army under the command of Kreon, and handed over
the bodies of the Argives to their relatives for burial.[170] That in
refusing burial to the Argives Kreon had violated a Greek international
law is clear from many passages in the _Suppliants_. Thus Aethra
says[171]:

                            The mothers now of these,
    Spear-slain, are fain to lay them in the grave,
    Wherefrom the victors let them, and refuse
    The corpses, setting the gods’ laws at nought;

and Theseus says[172]:

    But lifeless bodies—harming not your State, ...
    I claim to bury: lo! all Hellas’ law
    Do I uphold.

The Messenger thus describes the words of the herald[173]:

    Silence, ye people! Hush, ye ranks of Cadmus!
    Hearken—we come but for the corpses’ sake,
    To bury them and keep all Hellas’ law
    Inviolate.

The problem of the burial of Polyneices has two distinct aspects in
Euripides, as it has in Sophocles. In both accounts Polyneices was
ultimately buried, as it was necessary for legend to insist that he
should be, in view of the existence of tombs in Thebes which were
said to contain the bones of all the seven Argive leaders.[174] But
whereas in Sophocles it is religious fear which causes Kreon to consent
to the burial of Polyneices, in Euripides we feel that it is rather
the victorious intervention of Theseus which is the cause of this
_dénouement_. Eteocles and Polyneices are represented by Euripides as
having foreseen the conflict which would rage over their burial when they
had mutually slain each other. Thus, Eteocles solemnly binds Kreon to
refuse burial to Polyneices[175]:

                    But I, on the city
    And thee, O Kreon, this injunction lay:
    If I prove stronger, suffer not the corse
    Of Polyneices in this Theban realm
    To be interred: let death be the reward
    Of him who scatters dust o’er his remains,
    Although he be the dearest of my friends.

Again, Polyneices is said to have commanded, as he lay dying, his mother
and Antigone to bury him in Theban soil[176]:

    But bury me, O thou who gav’st me birth,
    And my loved sister, in my native land,
    Your mediation to appease the city
    Uniting, that of my paternal soil
    Enough for a poor grave I may obtain,
    Though I have lost the empire.

Thus Euripides conceives in a twofold aspect the act of Polyneices.
Subjectively, he thinks, Polyneices was justified in attacking and in
slaying his brother[177]: objectively, however, or technically, he was a
traitor and a fratricide because _prima facie_ he was the aggressor.[178]
But the sympathetic intuition of Antigone looks beyond the superficial
enactments of a political justice of which the obscure and oscillating
dictates cannot compete with her love for her brother in life, with her
grief for him in death, and with her reverence for the solemn injunction
which his dying lips had uttered.

The punishment of Oedipus which is mentioned in the _Phoenissae_ is
based, we believe, on the conception of his fatal act as voluntary
homicide,[179] but it also takes into account the facts of the Homeric
narrative. The Homeric[180] story of the continued rule of Oedipus
‘over the Cadmeans’ was not in harmony with Achaean principles of
blood-vengeance. Homer does not understand it. Perhaps this is because,
in Boeotia, as Leaf points out,[181] the Achaeans had not established
their power. It is possible that Oedipus enjoyed immunity from
punishment because of his position as a Minoan autocrat, but as there
existed in legendary story many capable and willing avengers it is
better to attribute his immunity to a discrimination between degrees in
homicide-guilt which we have associated with Pelasgian tribal custom, and
to interpret the Homeric reference as a Pelasgian ‘reminiscence.’[182]

In Homer, Oedipus lives, dies, and is buried in Thebes. But post-Homeric
legend, under the influence of the pollution doctrine, could not accept
these facts. Even if the plea of quasi-involuntary homicide which Oedipus
himself put forward had been accepted he would still have had to go into
exile for at least a period of years, and even then he could not have
returned to his domestic religion or have been buried in the tomb of his
fathers. The duration of exile for extenuated or involuntary slaying
in historical times, and therefore presumably[183] in the pollution
era, depended on the will of the relatives of the slain. One single
objector could have extended the exile period indefinitely, at least in
theory, according to the law ‘let all consent to be appeased or let
one objector hold the field.’[184] But in the post-Homeric story of
Oedipus, as Sophocles gives it, the plea of Oedipus was not accepted.
He was regarded as a voluntary homicide and sent into exile. It is true
that when Polyneices himself was banished, for political reasons, from
Thebes, he naturally relented, and in his altered mood he offered to
restore Oedipus to his home.[185] But in order to restore Oedipus it was
necessary that Kreon and Eteocles should be either killed or exiled, and
this contingency had not been realised. In Euripides the unhappy king
ultimately suffers the same fate. Kreon says to Oedipus[186]:

    But to my words, O Oedipus, attend:
    Eteocles, thy son, hath to these hands
    Consigned the sceptre of the Theban realm, ...
    I for this cause no longer can allow thee
    Here to reside: for in the clearest terms
    Teiresias has pronounced that, while thou dwell’st
    In these domains, Thebes never can be blest.
    Therefore depart. Nor through a wanton pride,
    Nor any hate I bear thee, do I hold
    Such language, but because I justly dread
    Thy evil genius will destroy this land.

And Oedipus refers to the Apolline oracle which foretold that he would
die in Athens (an oracle which Sophocles also mentions[187]) when he
says[188]:

    The oracle of Phoebus is fulfilled ...
    That in Athens an exile I shall die.

But in Euripides it is clear that Oedipus is not banished before the
death of Eteocles and Polyneices. A number of years is known to have
elapsed during which he still lived in Thebes. But he was imprisoned all
the time, and, as this suggestion is not implied in the Homeric story, we
must suppose that some legend invented this novel device by which part
at least of the Homeric facts could be brought into harmony with the
requirements of the post-Homeric doctrine of ‘pollution.’ It supposed
that Oedipus continued to live in Thebes, not however as a king or as a
free citizen with full civic rights, but as an imprisoned criminal who
by the very fact of his imprisonment did not pollute the State. Jocasta,
who, in accordance with the Homeric narrative, is represented as living
in Thebes for many years after the crimes[189] of Oedipus were committed,
says:

                        Soon as he learned
    That I whom he had wedded was his mother,
    The miserable Oedipus, o’erwhelmed
    With woes accumulated, from their sockets
    Tore with a golden clasp his bleeding eyes.
    But since the beard o’ershaded my sons’ cheeks
    Their sire they in a dungeon have confined,
    The memory of this sad event t’ efface,
    For which they needed every subtle art.
    Within those mansions he still lives, but sick
    With evil fortunes, on his sons pours forth
    The most unholy curses, that this house
    They by the sword may portion out.

We have said[190] that ‘pollution’ was conceived by the Greeks as
a quasi-physical reality which resembled a contagious disease. In
historical times a ‘polluted’ murderer was isolated by imprisonment. A
law of Dracon, which is confirmed by Plato and by Demosthenes, prescribed
that a convicted murderer _en rupture de ban_ could be arrested and
imprisoned, instead of being put to death, by the first person who
encountered him.[191] But imprisonment was never regarded, in Attic law,
as a permanent method of isolation for a murderer, simply because it was
not a recognised legal penalty for homicide. Oedipus therefore would have
been justified, from the standpoint of historical law, in uttering curses
against his relatives who imprisoned him. Hence we suggest that this
story of the imprisonment of Oedipus was invented by some legend-maker
of the pre-Draconian age, in an attempt to harmonise the Homeric story
of the continued life of Oedipus at Thebes with the post-Homeric
atmosphere which regarded him as ‘polluted’ and debarred from civil and
religious communion with his fellow-citizens. Euripides implies[192]
that ultimately the Apolline oracle was fulfilled and that Oedipus died
as an exile at Athens. In view of the general acceptance of this oracle
by traditional legends and of the ‘established fact’[193] of the burial
of Oedipus at Athens, Euripides appears to have abandoned the Homeric
account of the burial of Oedipus at Thebes. In this he reveals more
intelligence and a greater insight into the meaning of the post-Homeric
legend than did Pausanias and his authorities who believed that the
bones of Oedipus were transferred from Thebes to Athens.[194] For either
Oedipus was ‘polluted’ or he was not. If he was, he could not have been
buried at Thebes, since he was regarded as a wilful murderer: if he was
not, then he need not have come to Athens as a homicide-exile at all.

The statement of Jocasta[195] that Oedipus was imprisoned in order that
his disgrace might be forgotten, and that of Kreon[196] that Oedipus had
to be exiled for ever because he was ‘polluted,’ are inconsistent; but we
may infer from these statements, which Euripides himself composed, that
he did not quite understand the origin and motive of the story of the
imprisonment of Oedipus. For whoever invented this story did so with a
definite purpose, namely, to reconcile religious doctrine with historical
fact. The inventor knew the meaning and purpose of his invention. Hence
the statement of Jocasta to which we have referred cannot have originated
with the inventor of the story, for otherwise she would have said that
Oedipus was imprisoned to avoid pollution.

Nevertheless we think that here again Euripides sought to achieve
dramatic interest by introducing an antique variant of the story which
Sophocles had ignored. In Sophocles, Oedipus dies before the clash of
arms takes place between the Argives and the Thebans. In Euripides he
lives to see the realisation of his own curses, and becomes more easily
reconciled to his own sad fate when he finds that Destiny has avenged
him in his turn, as Laius was avenged, and that in leaving Thebes he has
removed from his life the local anger of ghosts and gods.


THE ‘MAD HERCULES’

The theme of this drama is one of the multitudinous episodes which are
associated with the life of Hercules. Now the legends of Hercules have
this much in common with such legends as we have examined concerning
Orestes and Oedipus, that they refer to the deeds of a great man who has
died. In Greek religion, apart from the Olympian Pantheon of the Achaean
caste, every great man assumed a divine nature when he died. But the
Olympian religion did not recognise the right of man to become divine,
and therefore whenever legend attributes human acts to such Olympian
gods as Apollo or Athene (of whose mortal life there was no record) we
must assume that at the time of such acts these gods have temporarily
assumed a human form. But Hercules never was an Olympian. In Homer,
Hercules is mentioned in a manner which suggests that he had been living
quite recently upon this earth, and living moreover a normal human life.
We find him in Hades, like all other dead men, though, curiously, he
retains some of his old vitality, for he is married to Hebe, the goddess
of eternal youth.[197] We hear of his maternal uncles living ordinary
human lives in Argos or in Thebes,[198] and his grandsons actually fought
in the Trojan war! We will not here attempt to discuss the origin of
the Grecian cult of Hercules. Müller, of course, connects him with the
Dorians. He thinks that Hercules and Apollo, in their respective rôles of
hero and of god, satisfied the normal wants of Dorian religiousness.[199]
We admit that the exaltation of Hercules as a divinity was of
post-Homeric origin; but it is futile, we believe, to seek to distinguish
the historical from the fictitious strata in Heraclean legends. At the
dawn of European literature the human life of Hercules, if there ever
was such a man, was a thing of the past, and it is therefore more than
probable that all the post-Homeric legends of Hercules are equally
fictitious. The main point which we wish to emphasise here is that most
of the legends of Hercules are based on the assumption that he had not
yet died: that he was a mortal man, who obeyed, on most occasions, the
laws of social humanity, not a god who had condescended to take human
form and who was superior to the operation of natural laws. We agree
that in the legends of Hercules there is a certain element of magic,
such as is found in the legends of Medea, or Jason, or Iphigeneia. This
element imports into Heraclean legends a certain degree of lawlessness
or of chaos. But, so far as homicide at least is concerned, we will
assume that Hercules is a man; not indeed an ordinary man, subject to
every ordinary law, but nevertheless a man, whose actions, however
archaically they may be conceived, can nevertheless be explained. The
difficulties which are presented by the Heraclean legends are due in
part to their archaic setting, but still more to their almost infinite
variety—a variety which we may attribute to the multitude of localities
in which this Hero-god was worshipped. The greater the number of shrines
which a god or hero possessed, the greater was the variety of the myths
which grew up around him, because ancient myths—which are not like
modern fairy tales, but which were rather sacred commemorations of
religious events—could be transferred from one Hero to another. Herodotus
tells[200] how Cleisthenes of Sicyon transferred the ‘tragic choruses’
which commemorated the sorrows of Adrastus to the cult of Dionysus. Thus
too must Hercules have had attributed to him the joyful exploits as well
as the sorrowful events of the ‘lives’ of local Heroes. For this reason,
and because of the tendency of myths to become more and more fanciful, we
believe that the legends of Hercules as of most gods are ‘fictitious.’

In the Euripidean drama, the _Mad Hercules_, we are told that Hercules,
in a fit of madness, slew his wife, Megara, and his children.[201] He
was deluded by the goddess Hera[202] into believing that he was thereby
inflicting death upon the children of his taskmaster, Eurystheus. We
may recall a somewhat similar delusion which was sent in a Sophoclean
drama by Athene upon Ajax. But whereas in the _Ajax_ no actual homicide
occurs, here we have actual bloodshed, and, worst of all, kin-slaying.
From a legal point of view, the position of Hercules is therefore quite
different from that of Ajax. It is, we think, more akin to that of
Oedipus. Hercules slays his children without knowing that they are his
children. We may omit, for purposes of legal analysis, the death of
Megara, his wife, for this death is obscured by the more heinous slaying
of his kindred. Like Oedipus, Hercules discovers the truth; like Ajax,
he contemplates suicide. He gives expression to sentiments regarding the
punishment of kin-slaying which are suggestive of historical Attic law;
though he forgets, for the moment, that his act was involuntary, when he
says[203]:

                            Ah! why lengthen out
    A guilty life, when of my dearest children
    I am become the murderer? Why delay
    To leap from the high rock or with a sword
    Transpierce this bosom, on myself their blood
    Avenging? or t’avert that infamy
    Which waits me, shall I rush into the flames?

Presently he begins to feel that he should not be considered fully
culpable[204]; yet he sees that it will be difficult for him to establish
‘extenuation’ as a plea.[205] The fit of madness which Hera had sent upon
him was indeed a grim reality, but it would be difficult to prove it in
a court of justice. Moreover, in the Euripidean account Hercules is an
alien in Thebes. His native State is Argos.[206] We have said that exile
was not permitted as a penalty for voluntary kin-slaying in historical
Greece. We have quoted[207] Plato for the law that even involuntary
slaying between aliens was punished by perpetual exile. If Hercules was
an alien at Thebes, so also were his children. In Homer[208] Thebes is
the birthplace of Hercules, but this Homeric fact is not accepted by
Euripides. In the following passage Hercules regards exile rather than
death as his correct and proper punishment, but owing to the difficulty
of proving involuntariness he fears that no city will receive him.
Thebes, he says, he must leave. To Argos, his native home, he cannot
return, because, as he says,[209] he has been already banished from that
State owing to his feud with Eurystheus. In other places he will indeed
be called a kin-slayer, and if he cannot prove his innocence he may be
banished. This statement lends support to our theory that in historical
Greece exile was not permitted for voluntary kin-slaying.[210] He
says[211]:

                      My fate is such
    That in my native Thebes I must not dwell:
    But if I here continue, to what temple
    Or friends can I repair? for by such curses
    I now am visited, that none will dare
    To speak to me. To Argos shall I go?
    How can I, when my country drives me forth?
    To any other city should I fly,
    The consequence were this: with looks askance
    I should be viewed as one well-known, and harassed
    With these reproaches by malignant tongues:
    ‘Is not this he, the son of Jove, who murdered
    His children and his consort? from this land
    Shall not th’accursed miscreant be expelled?’

But the archaic atmosphere of the ‘life’ of Hercules furnishes a solution
for this problem. Theseus arrives from Athens! Apparently we are now
living in the days which preceded the institution of citizen juries or
even of Ephetae courts! As Theseus, the autocratic King-judge, tried
Oedipus at the shrine of the Semnai,[212] so also, in a similarly
informal manner, he tries Hercules. He knows already, without being told
of it, that Hera is to blame. Therefore, he says[213]:

                            ... This mischief
    Springs from no god except the wife of Jove....

Hence he says to Hercules[214]:

                          From Thebes retire
    Since thus the laws ordain: and follow me
    To Pallas’ city: when thy hands are there
    Cleansed from pollution, I to thee will give
    A palace, and with thee divide my wealth.

What, we may ask, is the law to which Theseus here refers?
Wilamowitz[215] rightly says that the law is that which prohibits
his continuance at Thebes. We believe, however, that this was not a
specifically Theban law. If it had been, the fact would have been more
clearly indicated. The law in question is, we believe, an international
law, which declared that when an alien slew an alien, even without
intent, he must be debarred for ever from the State in which the deed
occurred. This law we have already quoted from Plato.[216] Hercules
therefore left Thebes and went to Athens,[217] and we are told that when,
in course of time, he dies in Athens he will receive the worship of a
Hero![218] The similarity of this _dénouement_ to that of the _Oedipus
Coloneus_ of Sophocles needs no comment. Both these consummations are
based, perhaps, on the existence of Hero-shrines in Attic soil. But
the legend-makers were careful not to give us legal impossibilities.
Hercules had shrines everywhere in Greece. Yet Hercules could not go to
Argos, for the simple reason that he had been exiled from that city. He
could not return to Thebes because of ‘the law.’ It was fortunate then
for Hercules that he found a king such as Theseus who admitted without
question the element of extenuation in his act. In historical Greece a
wilful kin-slayer could not have been accepted as an exile in any State.
The law which is referred to by Theseus cannot therefore have reference
to wilful slaying, for it permitted him to leave Thebes. If he had slain
his children wilfully, it would not have allowed him the option of exile.
If he is allowed this option, it is because his deed was viewed, either
by the dramatist or by the legend-maker, or by both, as extenuated or
quasi-involuntary kin-slaying. Such slaying in Greek law prescribed a
period of exile, temporary or perpetual, pending the appeasement of the
kinsmen.

Owing to the important differences which exist between the Euripidean
conception of the native state of Hercules and Homer’s conception, we
must assume that Euripides has abandoned Homer and is following an Argive
legend concerning Hercules. This conclusion is strengthened by the
account which Euripides gives, in this play, of Amphitryon, the father
of Hercules. Euripides makes Amphitryon say[219] that he is an exile
from Argos living at Thebes, because he had slain Electryon. Now, if
Euripides conceived Amphitryon as a Theban by birth, he could not legally
have presented him, since he was a man-slayer, as a resident in Thebes.
We have seen[220] that homicide-exiles were debarred from three possible
places of residence, namely (1) the State of the slayer, (2) the State of
the victim, and (3) the State in which the deed of blood took place.

Pausanias also refers[221] to this legend of Amphitryon. The Thebans of
his time pointed out a ruined house in Thebes, ‘where they say Amphitryon
dwelt when he fled from Tiryns owing to the death of Electryon.’ As
Tiryns was a city within the boundary of the historical Argive State
it is frequently confused with Argos in the legends. Electryon was the
father-in-law and the uncle of Amphitryon. That the slaying of Electryon
was not wilful is suggested by certain facts. Thus, the return of
Amphitryon to Argos is said to depend on the will of Eurystheus and the
labours of Hercules are regarded as the necessary ‘appeasement.’[222] We
need not suppose that there is any reference to the Pelasgian wergeld
system in the story of the ‘recompense’ which was demanded by Eurystheus.
This ‘recompense’ is more akin to the ‘appeasement’ of relatives in the
pollution system. It was the father of Eurystheus, Sthenelus, the brother
of Electryon, who had driven Amphitryon into banishment. Euripides
concedes this much to the claim of Thebes to be regarded as the home
of Amphitryon, in so far as he makes Amphitryon say[223] that he has
settled there as an exile. But legally he could not have lived there as a
homicide-exile if he had been a citizen of Thebes. Hence Euripides calls
him ‘the Argive Amphitryon.’ His hopes of an ultimate return to Argos and
of the ‘appeasement’ of Eurystheus suggest that his act was involuntary,
or quasi-involuntary. The very fact of his exile points to the same
conclusion.

The attempt of Lycus, King of Thebes, to murder Amphitryon, Megara, and
the children of Hercules, is also described in the play. The motive of
Lycus was political. Hercules had married Megara, daughter of Kreon,
the Regent of Thebes, and his family was therefore a dangerous rival in
the matter of dynastic succession. Hercules, as soon as he heard of the
plot, put Lycus to death.[224] This penalty, we have suggested,[225]
was a normal penalty for attempted murder (βούλευσις) in Achaean or
quasi-Achaean[226] society. We have discussed this penalty in our
analysis of the _Ajax_ of Sophocles. Whether there was an antique legend
which referred to this penalty, or whether the dramatist is consciously
archaising, it is difficult to decide. The Chorus, at least, have no
doubt that the penalty was just and Amphitryon takes the same view.[227]
The Chorus say to him as he dies[228]:

    Others have perished by that bloody hand.
    ... the retribution thou endur’st ... is just.


THE ‘CHILDREN OF HERCULES’

Of the Heracleidae, another family of Hercules, Pausanias says[229]:
‘When Hercules fled from Eurystheus at Tiryns, he went to his friend
Ceyx, the King of Trachis. But when Hercules left the society of
men[230] Eurystheus demanded his children, and Ceyx sent them to Athens,
suggesting that Theseus should protect them. And coming to Athens, they
caused the first war between the Athenians and the Peloponnesians, as
Theseus would not give them up to Eurystheus.’

In this Euripidean play, also, the children of Hercules are represented
as dwelling in the city of Athens, in the charge of Iolaus and
Alcmene,[231] and the war between Eurystheus and Theseus for their
extradition is the main theme. The presence of Iolaus in the drama is
probably, we think, derived from the legend of an expedition which the
Athenians made under his leadership to Sardinia.[232] The chief point
which we wish to emphasise here is that the demand for the extradition
of the Heracleidae has no connexion with homicide. Amphitryon had slain
Electryon. Hercules had sought in vain to ‘appease’ Eurystheus. It is
now evident that Eurystheus has refused all ‘appeasement,’ as the sons
of Oedipus refused it, _for political reasons_. In Greek law homicide
could not continue to afflict the children of a slayer unto the fourth
generation. With the death of Amphitryon, the homicide episode is
closed. In this drama, the extradition demand is therefore entirely
political. Upon this point our play is quite explicit. Eurystheus says to
Alcmene[233]:

                          For well I knew thy son
    Was no mere cipher, but a man indeed:
    Though strong my hate, on him will I confer
    The praise he merits from his valiant deeds.
    But after he was dead, was I not forced,
    Because I was a foe to these his sons,
    And knew what bitter enmity ’gainst me
    They from their sire inherited, to leave
    No stone unturned, to slay, to banish them
    And plot their ruin? Could I have succeeded
    In these designs, my throne had stood secure.

Demophon, son of Theseus, refuses to give up the sons of Hercules and
uses as a pretext the right of suppliants.[234] We recall the statement
of Pausanias[235] that Demophon was the first Athenian who was tried
at the Palladium court—a court which regularly tried cases of homicide
between strangers.[236] The words which Demophon speaks to the herald of
Eurystheus[237]—

                          Therefore, go thou back
    To Argos, and this message to Eurystheus
    Deliver: tell him, too, if there be ought
    Which ’gainst our guests he can allege, the laws[238]
    Are open: but thou shalt not drag them thence—

imply that the right of suppliant was not potent to protect offenders
but was only potent to secure for them a respite from merited
punishment; moreover they imply that Eurystheus has no right to demand
the extradition of offenders without the option of a trial.[239] We
have already admitted that the right of sanctuary helped to determine
the locality of certain courts, but we have maintained[240] that it
had no essential connexion with the origin of the principle of trials
for homicide, and that its connexion with murder courts is quite
accidental. We have suggested that[241] in historical Greece trial
was a possible option for extradition in case of homicide. Hence the
refusal of Eurystheus to accept trial suggests what Demophon definitely
asserts,[242] that the ‘offence’ of the Heracleidae was not criminal but
political.

But if the Heracleidae are innocent, what shall we say of Eurystheus? Is
he not as culpable as Lycus is in the _Mad Hercules_? Is he not guilty of
plotting murder for political ends? If he is not yet αἴτιος φόνου, is he
not guilty of βούλευσις? For this crime, we have said, in early Greece,
the penalty was probably death.[243] It is, then, significant that in
this play Eurystheus is put to death by the servants of Alcmene.[244]
Both the penalty and its mode of execution are archaic. Either legend
retained these elements unadulterated in their transition down the ages,
or Euripides deliberately imported into the myth an archaic atmosphere.
In neither case is Euripides giving us the ideas of his own time, for in
historical Greece βούλευσις was not punishable by death.

Eurystheus was captured alive in the battle and hence he claims the right
of a captive warrior and demands the protection of the Athenians![245]
Alcmene, however, insists that he should be given up to her for
execution![246] What a nice legal problem was this for a litigious
Athenian audience! How replete it is with that intense human interest
which was so dear to Euripides! The conflict is skilfully depicted in
the dialogue which takes place between Alcmene and the messenger (or
the Chorus?) after the battle.[247] Eurystheus’ appeal to the ‘laws
of Greece’[248] implies the existence of international legislation
concerning the rights of war-captives, but he himself had previously
shown very little regard for the international status of exiles. In vain
does he advance the plea of self-defence against these harmless but
dangerous children! The Athenians decide to take no action. They cannot
put to death a captive taken in war. But Alcmene claims that Eurystheus
is a murderer. According to ancient practice, it is her privilege to
avenge! Moreover, so far as Alcmene is concerned, she will not bury a
man whom she believes to be a criminal.[249] But unfortunately there
was an oracle of Apollo that Eurystheus should be buried in Athens.[250]
The Athenians therefore are disposed to bury him.[251] At first Alcmene
says[252] that she will not object to the burial of Eurystheus by the
Athenians, but this assertion is incompatible with the command which
she gives to her attendants later, to deliver the dead Eurystheus to
the dogs. We may perhaps assume that she performed a mock ritual of
‘exposure’ of the dead, that she cast the body of Eurystheus beyond the
boundaries, and that afterwards his relatives removed him for sepulture.
Such is the attempt which Euripides seems to make to solve the deadlock
between two elements of Greek law, namely that which permitted the burial
of an enemy,[253] and that which forbade the burial of a murderer.[254]
In the archaic atmosphere of the play, homicide and attempted
homicide[255] are equated as identical. In the words of Eurystheus, who
declares in vain that his death will cause pollution to his slayer, we
discern at once the failure of Euripides to be consistently archaic and
the failure of a dead man’s ghost to impose ‘pollution’ in the teeth of
civic law and international religion.


THE ‘MEDEA’

In regard to the origin and the evolution of the story of Medea which is
the subject of this drama, we cannot do better than summarise the account
which Verrall gives in his edition of the play. Verrall thinks[256] that
Medea was a Phoenician moon-goddess who was worshipped at Corinth at an
early period, and to whom were offered, in sacrifice, human victims,
including children; that these rites, which in course of time assumed a
more civilised form, (when a mock ritual of human sacrifice was accepted
in the place of ancient realities,) were ‘transferred’ to the goddess
Hera; that sacred legend retained indeed a memory of Medea, but the
evolution of Corinthian religion degraded to the level of a priestess
the Medea who once had been a goddess; and that hence arose the fiction
that Medea had once slain children—in sacrifice! Later, Verrall thinks,
this Corinthian story was expanded under the influence of eastern Greek
colonisation, and legend traced in the route from the Euxine to Iolcos
the natural course of Medea’s introduction to Greek lands. Weird Asiatic
notions of sorcery and witchcraft clustered round her name; to her were
attributed the atrocities which legend-memory recorded of the Aeolidae at
Iolcos. Thus was Medea degraded not only from a goddess to a priestess,
but also from a priestess to a sorceress, and from a sorceress to the
vilest murderess whom Grecian legends knew.

If the creators of the story of Medea were ignorant of her original
character, so also naturally was Euripides. For him, Medea is not a
goddess who has assumed the form of a woman, but a woman who has not yet
put off this mortal coil, and who as yet has done little to deserve that
she should, after death, attain to divinity! As a woman, she is, despite
her magic, subject to social laws. Her deeds of blood must be regarded
from a legal standpoint, whether that standpoint is applicable to one era
or to another. Let us consider how the deeds of Medea were avenged.

First of all, she slew her brother, Apsyrtus, in Colchis, to prevent
his pursuit.[257] For this crime she paid no penalty, if we except the
exile which destiny had, in any event, decreed for her. It was quite
unnecessary for the legend-maker to invent this additional atrocity of
fratricide, for to Colchis Medea was never to return! But as exile was an
archaic Pelasgian penalty for wilful kin-slaying, this conception bears
an antique stamp which is attributable either to the antiquity of the
story or to the archaising of later minds.

Again, Medea caused the daughters of Pelias to put to death their aged
father by deluding them into the belief that by cutting him in pieces and
boiling him with certain magic potions, they would restore him to youth
and vigour.[258] Here Medea acts as the ‘plotter and contriver’[259]
of murder. In primitive as in historical[260] times, such a deed was
regarded as equally culpable with that of an actual slayer—indeed, in
the special circumstances of the case she was the real if not the actual
murderer of Pelias, and the daughters of Pelias were guilty, at most, of
involuntary slaying. We cannot of course attribute to Medea the guilt
of kin-slaying, as she was not akin to Pelias. It is more probable that
she would have been regarded, for purposes of punishment, as an ordinary
murderess. In actual fact, she and Jason were expelled from Thessaly.
Even so, in the play,[261] she still fears the vengeance of Acastus, the
son of Pelias. This fact does not imply that she was conceived as guilty
of kin-slaying, which in historical Greece was punishable by death. We
believe that the Thessalian story of Medea was not conceived from the
standpoint of historical law.

In this story there are complications of blood-vengeance which suggest
an Achaean, or rather what we may call a quasi-Achaean atmosphere.
While, in Homer,[262] Pelias, son of Poseidon, rules over Iolcos like an
Achaean, by divine right, later legend revealed that he had previously
defrauded his half-brother Aeson of the kingdom and put him to death, and
that Jason the son of Aeson had himself narrowly escaped death at his
hands. Hence it was natural that Jason, the one-sandalled hero of the
oracle,[263] should command Medea to put Pelias to death. That is the
real reason why Jason, together with Medea, was banished from Thessaly
by Acastus. This quasi-Achaean exile is therefore similar to the Achaean
‘flight from death,’ and hence it is that Medea still fears the vengeance
of Acastus.[264] When Jason arrived at Corinth, he became affianced to
the king’s daughter, just as the Achaean Tydeus became the son-in-law
of Adrastus.[265] No pollution was involved in an alliance with a
kin-slayer! The presence of such Achaean episodes in Euripides, side by
side with episodes which bear a later stamp, suggests either a marvellous
capacity for archaising on the part of the dramatist or, more probably,
the unadulterated transmission of an antique legend.[266]

The main plot of this drama reveals two further atrocities which were
perpetrated by Medea. She plots the death of her husband, of his
intended wife, Glauce, of his intended father-in-law, Kreon, King of
Corinth, and of her own two children, whom she had borne to Jason. Her
murderous plot proved successful, except in regard to Jason. Her children
she slew deliberately with her own hand. It happened, previously, that
Aegeus, King of Athens, arrived at Corinth. Medea, well aware of the
consequences of the murderous plot which she had planned, and being, in
addition, under an edict of banishment from Corinth, entreated Aegeus to
give her protection at Athens.[267] He promised to do so, but she was not
content with a promise. She bound Aegeus under a solemn oath:

    Swear by the earth on which we tread, the sun,
    Thy grandsire and by all the race of gods ...
    That from your land you never will expel,
    Nor while you live consent that any foe
    Shall tear me thence.[268]

One or two problems are suggested by this quotation. If Medea had not
succeeded in securing this solemn contract on the part of Aegeus, would
she have carried out her plot? And was Aegeus bound by the oath when he
discovered the sequel? In this section of the story—which is the main
theme of our play—homicide is conceived as a ‘pollution,’[269] and in the
pollution system exile was not permitted for voluntary kin-slaying.[270]
The murder of her children was by far the most serious offence which
Medea committed, since they were her kindred. For the other deeds of
blood she could have legally sought asylum at Athens, as she was not a
citizen of that State, and the deeds had not been perpetrated there.
Medea seems to be well aware of these facts, for she utters no hint to
Aegeus of her dreadful plans. But it was her intention of slaying her
children which led her to extract from Aegeus this solemn oath. If he
had refused to swear, she would, we believe, have slain all her intended
victims, but she would then have committed suicide.

But was the oath which Aegeus swore binding in Greek international law?
Apparently Medea thought so, and Euripides seems to think so, too. The
Chorus, however, do not understand how Medea can find a refuge at Athens.
But it is only in the slaying of the children that they seem to find a
difficulty. They say[271]:

        For its holy streams renowned
        Can that city, can that State
    Where Friendship’s generous train are found
        Shelter thee from public hate,
        When, defiled with horrid guilt,
        Thou thy children’s blood hast spilt?
        Think on this atrocious deed
        Ere the dagger aim the blow.

But at the end of the play the Sun-god, the grandfather of Medea,
places his chariot at her disposal in order to facilitate her journey
to Athens,[272] the Corinthian gods accepting, as an expiation, the
establishment by blood-stained hands of a festival and mystic rites![273]
Jason is foredoomed to death,[274] and we are told that Medea will escape
the Erinnyes of her children![275]

If Euripides, as Wedd maintains,[276] habitually contrasts the morality
of the legends with that of his own day, we can only say that here the
contrast is so obvious that it need not have been indicated at all. But
is such a contrast really indicated? Does the futile protest of the
Chorus represent the Athens of Euripides, and does the action of Aegeus
typify the Athens of a barbarous past? If not, how do we explain the
facts of the drama? In our view, it is Jason, not Medea, who is the
villain of this play. Medea had left her home, her kindred, everything
that life held dear, for the love of a Greek adventurer. Jason never
taunts Medea with the slaying of his father. He had commanded it.
Driven forth as an exile from the land of Thessaly, she clings to her
blood-stained mate. In Corinth he deserts her, and she is ordered to go
away—anywhere, somewhere, into the great unknown. To the distracted mind
of a desperate woman who sees herself deserted in a friendless world
comes then the image of a two-edged sword, begotten of slighted love
and sexual jealousy. Love rejected, love transferred, transforms Medea
from a faithful friend into a dangerous enemy. Her children, erstwhile
the sweetest pledges of affection, are now so many goads which stimulate
her vengeance. The conflict of passions which rages in Medea’s breast
is depicted by Euripides with matchless skill. It proclaims her at once
human and insane. Subjectively therefore she need only plead guilty to
extenuated homicide, to slaying in a passion; and if such a plea were
accepted she would be entitled in Greek law[277] to the sanctuary of
exile. Why then does she bind Aegeus by an oath? We suggest that the
explanation is to be found in the distinction between the objective or
legal aspect of an act and its subjective or psychological aspect. It
would have been difficult for Medea to have established her plea in any
court, formal or informal. Aegeus might not have given her the benefit
of the doubt, as Theseus did to Oedipus, and Medea could take no risks.
Furthermore, this legend has an archaic setting, and portrays a Greek
story of a period which was antecedent to the establishment of regular
State courts of justice and to codified international law. This explains
why Aegeus observed his oath. There was no authority of an international
religion to declare that it was not binding. Viewed in this light, the
protest of the Chorus in our last quotation is a confirmation of our
hypothesis. They actually approve of the slaying of Kreon and of his
daughter, though they regret that they should have suffered for Jason’s
infamy. They say[278]:

    Heaven its collected store of evil seems
    This day resolved with justice to pour down
    On perjured Jason. Thy untimely fate
    How do we pity, O thou wretched daughter
    Of Kreon, who in Pluto’s mansions go’st
    To celebrate thy nuptial feast.

When the Chorus urge Medea not to slay her children, we feel that they
are prompted by feelings of pity and humanity, rather than by any sense
of legal or religious guilt. In the following passage in which we see the
strongest and most emphatic instance of their disapproval of Medea’s act,
their main objection is that her act is unusual! Only one woman, they
say, has ever been known to do such a deed before![279]

    Art thou a rock, O wretch, or steel to slay
    With thine own hand that generous race of sons
    Whom thou didst bear? I hitherto have heard
    But of one woman who, in ancient days,
    Smote her own children, Ino, by the gods
    With frenzy stung....
    But she, yet reeking with the impious gore
    Of her own progeny, into the waves
    Plunged headlong from the ocean’s craggy beach.
    Can there be deeds more horrible than these
    Left for succeeding ages to produce?

Thus, in this play we have no Euripidean contrast of barbarous with
civilised morality. Euripides favours Medea; so does the Chorus; so does
the plot. So strong is her passion, so conscious is she of her own moral
rectitude, so magnanimous is her soul, that, if Aegeus had not come,
she would have carried out her plans, and if Aegeus had not sworn, she
would have done the same. But with her blood-stained hands she would have
driven into her heart the sword which had just drained the life blood of
her children.


THE ‘HIPPOLYTUS’

The scene of the _Hippolytus_ is laid in Troizen, in S.E. Argolis, the
realm of Pittheus, the maternal grandfather of Theseus, King of Athens.
Thither Theseus has come, because, says Euripides, he was sentenced
to one year’s exile for the slaying of Pallas and his sons. Aphrodite
says[280]:

    But from Cecropia’s realm since Theseus fled
    To expiate his pollution, with the blood
    Of Pallas’ sons distained, and with his queen
    Sailed for this coast, to punishment of exile
    Submitting for one year.

Now Pausanias informs us[281] that ‘justifiable homicide was the plea of
Theseus when he was acquitted for killing Pallas and his sons.’ We have
pointed out[282] that Pallas and his sons were slain in a civil war in
Attica. As they were technically rebels, and unjust aggressors, seeking
to dethrone Aegeus (the father of Theseus), who was the reigning monarch,
it was quite natural that from one point of view the act of Theseus
should have been morally regarded as justifiable homicide. It would not
have required a court of justice to have established the validity of
such a plea. Had not Eteocles been automatically ‘acquitted’ for the
slaying of Polyneices? But why does Euripides speak of a sentence of
one year’s exile? This penalty in relation to kin-slaying (Pallas was a
brother of Aegeus) can only have one meaning. Plato assures us[283] that
if a kinsman slays a kinsman in a passion, and if the deceased before he
expires shall have ‘forgiven’ him and absolved him from blood-guiltiness,
the deed shall be regarded as involuntary homicide for which the normal
penalty was one year’s exile. To explain this reference in Euripides,
therefore, Theseus must be conceived as guilty of extenuated kin-slaying
which was ‘forgiven.’ But we are nowhere told that the Pallantidae
forgave their slayer! We have said[284] that there was a legal affinity
between the conceptions of justifiable and of extenuated slaying. Yet
the two kinds of homicide were never identified, and it would be all the
more difficult to identify them when the deed concerned a King of Athens.
Hence we must suppose either (1) that Euripides has here abandoned the
tradition mentioned by Pausanias, or (2) that the legal aspect of the
slaying of the Pallantidae had become confused in the legends, before
Euripides, with the legal aspect of some other deed of blood with which
the name of Theseus was associated.

During the sojourn of Theseus at Troizen, where his son Hippolytus
was being brought up, Phaedra, the second wife of Theseus, sought to
seduce into adulterous intercourse her step-son, Hippolytus. Euripides
represents Hippolytus as an Orphic votary,[285] and we will condone the
anachronism[286] because it emphasises the probability of Hippolytus’
repudiation of Phaedra’s suggestions. Phaedra, in shame and anger,
committed suicide,[287] but in revenge for the puritan’s rejection of her
love, she left behind her a letter in which she accused Hippolytus of
forcible violation.[288] Such an accusation, followed by suicide, would
be sufficient to convict Hippolytus in either ancient or modern times.
It would have convicted him of attempting an ‘indecent assault,’ and of
attempted adultery. But would it have convicted him of having caused the
death of Phaedra? Theseus believed him guilty of all these crimes, and
decided to banish him from Troizen, pronouncing against him, in addition,
a virulent curse which, in the religious atmosphere of the ancient world,
was as dangerous to the life of Hippolytus as the σήματα λυγρά were which
were sent, in analogous circumstances, by Proitus to the King of Lydia,
in the legend of Bellerophon.[289] He says[290]:

                            O Neptune, O my sire,
    Since thou hast firmly promised that thou thrice
    Wouldst grant me what I prayed for, now fulfil
    One vow, and slay my son, nor let him ’scape
    This single day, if thou with me design
    To ratify the compact thou hast made....
    Moreover I will drive him from the land:
    For of these twofold fates, or this or that
    Must smite him: Neptune, when he hears my curses,
    Will plunge the miscreant to the shades of hell;
    Else, cast forth from this region, and ordained
    To wander in some foreign land, a life
    Of the profoundest misery shall he drag.

The crimes which Theseus attributes to Hippolytus are so many and so
various that it is impossible to connect this penalty of banishment with
the homicidal aspect of Phaedra’s death. The penalty is too severe, as
his action in causing Phaedra’s death could hardly have been regarded
even as manslaughter.

It is to be noted that Hippolytus was banished from Athens as well as
from Troizen.[291] After leaving Troizen, as he was travelling along
the coast, he was assailed by a sea-monster which was sent by Poseidon,
within sight of the Scironian rocks[292] (this point, we shall see,
is important for the correct analysis of the legend): the horses
took fright, and Hippolytus was dragged behind the chariot until he
was mortally injured. He was brought back to Theseus; and as Artemis
miraculously revealed to Theseus his innocence of the crime which had
been alleged against him, the father and the son became reconciled;
and, before he died, Hippolytus absolved his father from the guilt of
blood.[293] Thus the play ends.

We have said[294] that in early Greece, and even amongst the Achaean
caste, adultery was not punishable by death. Hence the curse of Theseus
renders him liable to blood-guilt. He ‘contrives’ death, he is αἴτιος
φόνου,[295] even if he does not actually slay Hippolytus. He confesses
his guilt in the closing scene. Now the ‘forgiveness’ of a dying
kinsman did not absolve the slayer from all punishment. He had still,
in historical Greece, to endure a penalty of one year’s exile from his
home-land. Is it not strange, therefore, that in this play Theseus
suffers no punishment for the death of Hippolytus? Troizen was reputed
to have been the birth-place of Theseus; Athens was the birth-place of
Hippolytus. Euripides remembers the latter fact when he represents the
exiled Hippolytus as debarred from Athens. But he forgets the former
fact when he makes Troizen a place of exile for Theseus! Pausanias
says[296] that Theseus went to Troizen to be purified for the slaying of
Pallas and his sons, and that at Troizen Phaedra accomplished the death
of Hippolytus. Moreover, Pausanias tells us[297] that over the royal
portico of the Athenian Prytaneum there was an earthenware statue which
represented Theseus in the act of hurling into the sea a certain brigand
named Sciron. For Euripides, Sciron is the name of a sea boulder in the
Saronic gulf. But Plutarch assures[298] us that Sciron was a kinsman of
Theseus, that Theseus slew him, and that as an atonement he instituted
the sacred Isthmian games!

It seems obvious that Euripides has either adopted an eclectic attitude
to these various legends of Theseus, or that they had become ‘fused’
before his time. But he is not concerned with legal accuracy or
consistency, so much as with the construction of an intelligible plot
of intense human interest. To Euripides it must have appeared improbable
that the temporary sojourn of Theseus at Troizen was connected, as
Pausanias alleges, with purgation rites, since these rites would normally
have been performed at Athens. Moreover, the brief period of time
which such rites would have necessitated does not afford a sufficient
explanation of his ‘exile’ for the space of one year. Again, it was
absolutely necessary to suppose that Theseus returned to Athens. But, for
this, it was necessary to assume that he was ‘forgiven’ by Hippolytus
whom he, directly and immediately, and Phaedra indirectly,[299] caused to
be killed. But we have not yet discovered the secret of that one year’s
sojourn at Troizen. We believe that it is in the legend of Sciron, which
Euripides ignores, that we must seek the real origin of the tradition
concerning a ‘forgiveness’ and a period of one year’s exile, in the life
of Theseus. We have already[300] pointed out how closely these two ideas
may be correlated. We suggest that the real legends of Theseus presented
some such facts as the following:

1. Theseus slew Pallas and his sons, was acquitted by the Delphinium
court,[301] and was purged at Athens.

2. Phaedra, not Theseus, caused the death of Hippolytus.[302]

3. Theseus slew a kinsman,[303] named Sciron, in Attica, but Sciron,
before dying, forgave his slayer. Theseus therefore went into exile for
one year—not to Troizen—but to the Isthmus where he instituted a sacred
festival. He could not have gone into exile to Troizen, for this realm
belonged to him (since he was the grandson of Pittheus[304]), and in
Euripides he claims the right to banish Hippolytus from Troizen.[305] He
was certainly a citizen of Troizen since in legend he was born there.

We must suppose, therefore, according to this hypothesis, either that
Euripides selected different elements from these legends and joined
them together, or that they had been confused in some one legend before
his time. In this fusion the forgiveness was shifted from Sciron to
Hippolytus. Theseus was conceived as the cause of Hippolytus’ death;
Sciron was ignored and the slaying of Pallas was regarded as extenuated
but not as justifiable homicide.


THE ‘ION’

The most important incident in the _Ion_ is the attempted murder
(βούλευσις) of Ion, the eponymous ancestor of the Ionians, by his mother
Creusa, who does not know that he is her son. Thus we meet once more
a homicide problem forming the basis of a drama, and a solution of
that problem which requires for its intelligibility the application of
homicide-law. Euripides is deliberately pandering to Athenian national
pride when he represents Ion, by repute the son of Xuthus, as really
the son of Apollo and Creusa.[306] In the temple of Delphi he is reared
as a minister of the god. Creusa has almost forgotten the issue of her
ancient amour, and by a tragic irony comes with Xuthus to Delphi, to
consult Apollo as to the causes of her childlessness. Apollo informs
Xuthus that he will give him a son and heir, and Xuthus is led to believe
that his newly found ‘son,’ Ion, is the offspring of some intrigue of
his youth. When Creusa hears about this ‘stranger,’ she regards him with
hostile feelings, and decides to kill him by poison. In this design,
however, she does not succeed. Have we here, then, a ‘plot to kill’ or
attempted murder? The legal essence of the former, we have seen,[307] is
the realisation of the plot. Therefore, the guilt of Creusa is that of
attempted murder or βούλευσις. No one except Apollo is supposed to be
aware until the end of the play of the real relationship which exists
between Ion and Creusa. Hence, we have here a suggestion of an act which,
like that of Oedipus, is objectively related to kin-slaying, but which,
subjectively, must be regarded as ordinary ‘attempted murder.’ We have
seen[308] that in early Greece attempts to kill and actual slayings were
accorded equal punishment. But we find in the _Ion_ that Creusa is not
punished at all! The explanation of this problem is the main object of
our present inquiry.

When the attempted murder of a minister of Apollo is discovered and
reported, the whole civic machinery of the Delphian State is put in
motion.[309] A court is held at which Ion is the accuser. He charges his
mother with attempted murder, but there is a subtle suggestion of the
additional guilt of attempted sacrilege. This court of Delphian nobles
condemns Creusa to death. Creusa’s servant says[310]:

                        Delphi’s rulers have decreed
    My queen shall be thrown headlong from the rock,
    Nor hath one single voice, but the consent
    Of all, adjudged her death, because she strove
    E’en in the temple to have slain the priest.
    Pursued by the whole city, hither bend
    Her inauspicious steps. She through a wish
    For children to Apollo came: but now
    She perishes with all her hoped-for race.

The Chorus recommend Creusa to take refuge in a sanctuary.[311] She
answers that sanctuary is valueless as a refuge against the sentence of
death. The Chorus comfort her with the assurance that while she remains
in the sanctuary she cannot be slain.[312] But Ion, who by a tragic irony
leads the executioners, leaves no doubt that her refuge will not avail
her. He says[313]:

                          Behold
    The sorceress, what a complicated scene
    Of treachery hath she framed, yet trembles not
    The altar of Apollo to approach.
    As if Heaven’s vengeance could not reach her crimes.
    But neither shall this altar nor the temple
    Of Phoebus save thy life.

Creusa in the ensuing dialogue advances a plea of justification. She
argues that if Ion came to Athens, sooner or later he would have slain
her through dynastic rivalry:

                          I sought
    To take away the life of you, a foe
    To me and to my house....[314]
    Lest I should perish if your life was spared.[315]

But this was also the plea of Eurystheus when he sought the lives of the
Heracleidae. In Greek law the plea has no validity. Ion commands his
mother to leave the altar,[316] saying

                    Shalt thou ’scape unpunished
    For thy attempt to slay me?[317]

At this critical moment the Pythian priestess intervenes, and requests
Ion to desist. She holds that the attempt of Creusa was mitigated by
‘passion’—and that therefore she did not deserve to die. She says[318]:

    Wives with inveterate hatred ever view
    Their husbands’ sons sprung from another bed.

Thus does Apollo override the verdict of his priests! But he goes
farther. Creusa, according to the oracular interpretation of her act, was
guilty of an ‘extenuated’ attempt to kill, and should therefore in strict
law[319] have been punished by a penalty of temporary exile. Yet she
is permitted to return forthwith to Athens, her native country! In the
following verses Ion is urged to ‘forgive’:

                          Banish from thy soul
    This rancour, now the temple thou art leaving,
    And on thy journey to thy native land.[320]

But we have not yet rendered the _dénouement_ legally intelligible.
We think that it can only be explained by one hypothesis, namely, by
assuming that Apollo takes upon himself the responsibility for Creusa’s
act. It was he who, by concealing the true facts, had provoked Creusa
to attempted murder. It was he, therefore, who must take the blame.
We have seen that there is no doubt that otherwise Creusa would have
suffered death. That penalty is an archaic one, being based, as we
think, on the notion of the absence of discrimination in early Greece
between degrees of homicide-guilt. In the more subtle analysis of Apollo
we may see perhaps a suggestion of Euripides as to the evolution of
such distinctions, which characterised the historical period. But it is
possible that such distinctions existed in Pelasgian groups, though not
in Achaean or quasi-Achaean societies. If there is anything legally
improbable in this legend, it is obscured by the dramatic interest
which attaches to the recognition scene between the mother and the
son. Moreover Euripides and therefore the legend which he follows were
compelled to indicate the important fact that Creusa _did_ return with
Ion to Athens, and that the glorious mother of the Ionian race had not
been stained by the guilt of kindred bloodshed.


THE ‘ANDROMACHE’

In the _Andromache_ there are two events of a homicidal character which
we must discuss: (1) the attempted murder of Andromache, who was then a
war-captive in the home of Neoptolemus, and that of her son, by Hermione,
the wife of Neoptolemus, and by her father Menelaus: (2) the slaying of
Neoptolemus, at Delphi, by the Apolline priests and magistrates on a
false charge of sacrilege which was urged against him by Orestes. The
first event is clearly a case of attempted murder, because the plot
failed to materialise owing to the arrival of Peleus. The second event
is more difficult to define. Objectively, it points to the execution
of a normal penalty for an alleged sacrilegious attempt to despoil
the temple and for a previous actual spoliation: but, subjectively,
Orestes was guilty of contriving the death of Neoptolemus, and he
advances, in private, a sham plea of justification, when he says that
he regards Neoptolemus, who had married Hermione, his own fiancée, as
a virtual adulterer.[321] From the words which are addressed by Thetis
to Peleus at the end of the play,[322] we may infer that the plot of
Orestes was viewed with disapproval by the gods. But, legally, he must
escape punishment because the actual slayers could plead sufficient
justification, and his private motives were not publicly proclaimed. Let
us give some details of both episodes. Hermione, when her attempt to kill
is discovered and frustrated, meditates suicide, because, we are told,
she fears that her husband will slay her or send her into exile. Thus, a
nurse in Hermione’s service says[323]:

                          Within these doors
    Hermione, my mistress, by her sire
    Forsaken, and grown conscious of the guilt
    She hath incurred by that attempt to murder
    Andromache and her unhappy son,
    Resolves to die, because she dreads lest, fired
    With indignation at her guilt, her lord
    Should cast her forth with scorn, or take away
    Her life because she purposed to have slain
    The innocent. The servants who attend
    Can hardly by their vigilance prevent her
    From fixing round her neck the deadly noose
    Or snatch the dagger from her hand, so great
    Is her affliction, and she now confesses
    That she has done amiss.

In this passage death appears as the archaic penalty for attempted
murder. If Neoptolemus, the husband of Hermione, permits an option of
exile, it is perhaps because such an option was permitted for actual
murder in historical times, and the penalties were supposed to have been
identical, in cases of attempted and of actual murder, in prehistoric
days. It is also possible to explain the option by reference to the fact
that Andromache was a captive and that therefore her master had the
right to forgo the full penalty. We have seen[324] that the Achaeans
did not discriminate between voluntary and involuntary homicide, and we
may regard the reference to this penalty here as a case of historical
archaising, which attributed to the Achaean Neoptolemus an ignorance of
the distinction between attempted murder and actual murder. But we may
also suppose that there was a legend which originally contained all these
details and retained them as an unadulterated tradition down the ages. In
historical times attempted slaying could not have been punished by a more
severe penalty than that of exile, the duration of which depended perhaps
on some form of ‘appeasement.’ That such was the historical penalty may
be inferred from the fact that the Palladium court tried such cases in
the time of Aristotle and, we think, from Solon’s time onwards.[325] When
the ‘attempt’ (βούλευσις) resulted in actual wounding or in physical
injury, as in cases of attempted poisoning, the case was probably[326]
tried by the Areopagus, and the sentence was perpetual exile without
confiscation of property.[327] In this play, however, as in the _Ion_,
the attempted murder of Andromache was unpunished; Neoptolemus, the
natural punitive agent, did not live to hear of the attempt. Andromache
herself warned Menelaus that the people of the district would put him and
Hermione on trial and punish them. She says[328]:

    O Menelaus, be it now supposed
    I by thy daughter am already slain.
    ’Twill be impossible for her to ’scape
    From the pollution ruthless murder brings;
    Thou, too, by many tongues wilt be accused[329]
    Of this vile deed, with her will they confound
    Thee, the abettor.

Do we not seem to have here a legend which evolved? First of all we have
private vengeance. Everything depends on Neoptolemus. Then pollution
enters the story and the people have a religious interest in homicide.
Yet the main fact could not be got rid of, namely that Hermione
escaped punishment. If Euripides is archaising, could he not have been
consistent? Or is he thinking of that vaguely defined post-Homeric age
in which the conception of murder as a pollution existed, but in which
homicide is still, as amongst the Hebrews, a matter for the avenger of
blood? But why, then, does he mention the people? Is he thinking of the
pressure of public opinion, such as was already gathering in Achaean
times? Andromache seems to take a different view from that of Hermione.
The issue of the plot confirms Hermione’s outlook, which is Achaean. Is
it not more natural to suppose that an Achaean story became partially
‘Apollinised’ in later times than to suppose that Euripides gives us two
different archaisms side by side?

Andromache’s attack on Spartan homicide becomes intelligible if we
remember the anti-Spartan sentiments of the democrat Euripides. ‘Is
not murder abundant at Sparta?’ asks Andromache.[330] When, we ask,
was it abundant? Is this statement merely a retort to Hermione’s
assertion that murder was common in barbarian Troy?[331] Or is Euripides
deliberately asserting that Sparta was inferior even to barbarians?
According to the latter hypothesis we must assume that he is speaking of
historical Sparta, and his opinions are to be attributed to anti-Spartan
prejudice.[332]

In the second homicide episode of this drama, Neoptolemus is slain at
Delphi. Orestes who plots and in part executes his death escapes all
punishment, for reasons which we have already indicated. The Delphians
who are prepared, in the _Ion_, to condemn to death a person guilty of
attempted murder, are here themselves engaged in slaying a visitor to
their temple. But Neoptolemus was an enemy. He has already despoiled
the temple. His life is therefore forfeit. To slay him was, like the
projected execution of Creusa, a just revenge. Yet Fate has dealt harshly
with Neoptolemus. He now visits the temple not to despoil it, as Orestes
falsely alleges, but to make atonement for a previous offence which he
had committed against Apollo.[333] Despite the false evidence of Orestes,
Apollo, the prophet who knows all things, should have intervened. Thus
the messenger utters a criticism which suggests the sentiments of
Euripides and of fifth-century Athens[334]:

                          Thus Phoebus,
    Who prophesies to others, mighty King,
    And deals out justice to the admiring world,
    Hath on Achilles’ son revenged himself,
    And like some worthless human foe, revived
    An ancient grudge: how then can he be wise?

Thetis declares that the death of Neoptolemus is a disgrace to the
Delphians and, is for Orestes, a murderous crime.[335] Though slain
on grounds of sacrilege, Neoptolemus is buried near the shrine of
Phoebus![336] The existence of such a tomb at Delphi would naturally have
begotten the story of his death there: the fact that Hermione was, in
one legend, the wife of Orestes, in another the wife of Neoptolemus, and
the close connexion of Orestes with Delphi in post-Homeric story, may
explain his association with the death of Neoptolemus. But the murderous
plot which is here attributed to Orestes we believe to be Euripidean. It
has no proper sequel: it does not harmonise with anything antecedent or
subsequent: it is just a novel, thrilling episode introduced by Euripides
to give an artistic interest to an otherwise dull and lifeless drama.


THE ‘HECUBA’

A deed of blood and its avenging forms the subject of the _Hecuba_.
The scene is laid at Troy and the atmosphere is predominantly Homeric.
Polymestor, King of Thrace, having consented to act as the guardian and
protector of Polydorus, the son of Priam, King of Troy, murdered his
ward and cast his body unburied on the sea-shore. The mode of vengeance
which is put in force against Polymestor is peculiarly archaic. The
avengers are exclusively women, and are led by Hecuba, the mother of
Polydorus. The punishment which is exacted is not the death or the exile
of Polymestor, but the death of his two sons, and the destruction of his
eyes. Here we have an instance of physical torture such as was prohibited
by a law of Dracon[337] in the case of a convicted murderer caught _en
rupture de ban_. We have also an instance of hereditary punishment
which Greek law had abolished for homicide in the seventh century, and
had retained for treason alone in the historical era,[338] in the form
of a civic degradation of the traitor’s posterity. Polymestor has no
consciousness of guilt after the slaying of Polydorus, as he regards his
act as justified in political self-defence, and therefore he proceeds to
avenge himself on Hecuba and the Trojan women whom he now regards as the
murderers of his children. At this stage Agamemnon is requested by Hecuba
to act as an arbitrator.[339] In his presence Polymestor says[340]:

    But hear my motives for the deed, to prove
    How justly and how prudently I acted:
    Your enemy, that boy, if he survived
    The ruin of his country, might, I feared,
    Collect the scattered citizens of Troy,
    And there again reside. I also feared
    That when the Greeks knew one of Priam’s line
    Was living, with a second fleet invading
    The shores of Phrygia, they again might drain
    Of their inhabitants the Thracian fields,
    Involving us, their neighbours, in the vengeance
    They on their foes at Ilion wreak. To us
    Already hath such neighbourhood, O King,
    Proved baneful.

The Chorus, however, imply that Polymestor has been justly punished[341]:

                          Hapless man,
    How art thou visited by woes too grievous
    To be endured: but by dread Jove, thy foe,
    On him whose deeds are base, it is ordained
    That the severest punishments await.

This passage suggests that the poet is reproducing an archaic atmosphere.
Now the Achaeans, we have seen,[342] ordinarily held no trials for
homicide. The pleadings before Agamemnon, which we find here, do not,
strictly speaking, constitute such a trial. We have seen[343] that the
Achaeans recognised a distinction between murder and just revenge.
Athene upholds that distinction in the _Odyssey_. Agamemnon upholds
that distinction here. He decides in favour of Hecuba, saying to
Polymestor[344]:

    Know, then, to me thou seem’st not to have slain
    Thy guest through an attachment to my cause,
    Nor yet to that of Greece, but that his gold
    Thou might’st retain: though in this wretched state
    Thou speak to serve thy interests. Among you
    Perhaps the murder of your guests seems light;
    We Greeks esteem it base. If I acquit thee,
    How shall I ’scape reproach? Indeed, I cannot:
    Since thou hast dared to perpetrate the crime,
    Endure the consequence.

The acceptance by Polymestor of Agamemnon’s decision suggests to us
the potency of Achaean military discipline in matters of homicide. Was
this acceptance indicated in an ancient legend, which was preserved in
Thrace, and which was transmitted without adulteration, or is Euripides
correctly archaising from his general knowledge of Achaean procedure as
revealed by Homer? The former alternative seems to us the more probable
in view of the consistently archaic atmosphere of this play. There is no
reference to homicide as a ‘pollution,’ to purgation, to Apollo, to State
trial. A certain degree of divine anger against Polymestor is indicated,
but this was caused by the violation of hospitality and by the act of
deprivation of burial, both of which acts are religious offences in
Homer. Hecuba says to the Chorus[345]:

                          O, ’twas a deed
    Unutterable, a deed without a name,
    Surpassing all astonishment, unholy,
    And not to be endured. Where now the laws
    Of hospitality? Accurséd man,
    How cruelly hast thou with reeking sword
    Transpierced this unresisting boy, nor heard
    The gentle voice of pity!

Again she says to Agamemnon[346]:

                                    Avenge
    My wrongs upon the man who ’gainst his guest
    Such treachery could commit, who, nor the gods
    Of Erebus beneath, nor those who rule
    In Heaven above regarding, this vile deed
    Did perpetrate, e’en he with whom I oft
    Partook the feast, on whom I showered each bounty,
    Esteeming him the first of all my friends:
    Yet, when at Ilion’s palace with respect
    He had been treated, a deliberate scheme
    Of murder forming, he destroyed my son,
    On whom he deigned not to bestow a tomb,
    But threw his corse into the briny deep.

In the scepticism of Talthybius regarding the existence of the gods, we
have an anachronism which is strictly applicable only to the rationalists
of fifth-century Athens. The comparative indifference of the Achaeans
to religion left the road open for this anachronism on the part of
Euripides.

When the son of Achilles is sacrificing Polyxena at the tomb of Achilles,
he says to the spirit of Achilles[347]:

                        Son of Peleus,
    My father, the propitiatory drops
    Of these libations which invite the dead
    Accept. O come and quaff the crimson blood
    Of this pure virgin whom to thee all Greece
    And I devote.

For this placation of the dead by human sacrifice we have perhaps a
precedent in the sacrifice by Achilles of twelve Trojan youths to the
shade of Patroclus. But the suggestion that the dead man came to the
tomb to drink the blood offering indicates a fusion of Pelasgian and
Achaean beliefs such as Ridgeway assumes to have taken place before
the time of Aeschylus.[348] Already in the _Odyssey_, however, there
is evidence of the tendency to a fusion of ritual and beliefs, which
reached maturity before the historical period.[348] Such words as
Euripides here attributes to Achilles could never have been spoken by
the Homeric Achilles. For the Achaeans, the dead, once they were buried,
could never leave Hades, and they did not, like Pelasgian ghosts, drink
blood offerings at the tomb. This, then, is an anachronism, which was
perhaps derived from a misinterpretation by Euripides of the Nekuia
in the _Odyssey_. Hecuba naturally objects to the sacrifice of her
daughter,[349] but incidentally she objects to human sacrifice in
general, save in the case of a real enemy. Polyxena, she argues, was not
an enemy to Achilles. His ghost therefore could not be placated by her
sacrifice. This attitude of Hecuba suggests that a post-Homeric Thracian
legend contained a reference to a barbarous blood-thirst on the part
of the dead, which we have attributed to the Hesiodic age of chaos.
Euripides elsewhere attributes the sacrifice of Polyxena to the expressed
desire of the ghost of Achilles![350] We cannot be certain whether a
post-Homeric legend embodied these conceptions, or whether Euripides
invented them in his desire to add to the horrors of the story another
grim idea.


THE ‘BACCHAE’

On the first introduction, into Thebes, of the worship of Bacchus, or of
what may be termed the orgiastic cult of Dionysus, Pentheus, the reigning
King, opposed the new religion, declared Bacchus an impostor,[351] and
threatened him with death.[352] Hence the chorus of Bacchanals, inspired
with prophetic foresight, approve in advance the death of Pentheus whom
they regard as an enemy or a traitor.[353] By a tragic irony, Agave,
the mother of Pentheus, who has joined the Bacchic worshippers and is
mesmerised by Bacchic influence, is the actual perpetrator of the death
of Pentheus. She is deluded by Bacchic frenzy into believing that she is
slaying a lion, and returns to Thebes carrying what she believes to be a
lion’s head. She says[354]:

    Ye that within the high-towered Theban city
    Dwell, come and gaze ye all upon our prey,
    The mighty beast by Cadmus’ daughter ta’en;
    Nor with Thessalian sharp-pointed javelins,
    Nor nets, but with the white and delicate palms
    Of our own hands. Go ye and make your boast,
    Trusting to the spear-maker’s useless craft:
    We with these hands have ta’en our prey, and rent
    The mangled limbs of this grim beast asunder.
    Where is mine aged sire? Let him draw near!
    And where is my son Pentheus? Let him mount
    On the broad stairs that rise before our house;
    And on the triglyph nail this lion’s head
    That I have brought him from our splendid chase.

Her position, then, differs from that of Ajax,[355] in that the deed
really takes place and that she did not intend it. The act is, we shall
find, analogous to, but less culpable than, that of Oedipus when he slew
his father.

Cadmus, father of Agave, refers the ultimate guilt to Bacchus[356]:

    Justly—too justly hath King Bromius
    Destroyed us, fatal kindred to our house.

Agave adopts a similar attitude when she realises the nature of the deed
which she has wrought.[357] But she cannot escape all punishment. At the
end of the play Dionysus propounds an oracle of Zeus which declares[358]
that Cadmus shall become a dragon, and his wife Harmonia shall become a
serpent, but that they will nevertheless conquer many barbarian cities
and will be borne ultimately to the land of the blessed gods. Yet they
must leave Thebes now because of their impious attitude to Dionysus! Is
this decree an instance of ‘collective’ punishment? Is it necessary that
the entire family of Cadmus should suffer for the impiety of Pentheus
which he has already atoned for by an ignominious death? It may be an
explanation of this obscure punishment to say that it is collective.
But what shall we say of Agave? She also has to leave Thebes. Is her
exile to be regarded as a penalty for ‘impiety’ in regard to Dionysus?
Surely she has already been sufficiently pious and to her cost! She
was actually one of the Bacchic worshippers, in the play. Moreover, in
going into exile she bids farewell to her father![359] They are all sent
into exile together, yet she cannot go with her father.[360] Surely, if
impiety were the offence, and the penalty were collective exile, all the
offenders could have gone in conjunction. Why is Agave exiled, then,
if she is condemned to separate exile? We suggest that this penalty is
inflicted because of kin-slaying in religious frenzy, that is to say, in
legal language, ‘in a passion.’ Plato assures us[361] that kin-slaying
extenuated by passion prohibited the slayer from any further intercourse
with her family. ‘If a father or mother in a passion kill their son or
daughter by blows or in any other violent manner ... let them remain in
exile for three years and on returning let the husband be divorced from
the wife and the wife from the husband, and let them never afterwards
beget children together nor dwell in fellowship with those whom they have
deprived of child or brother, or have a share in their sacred rites.’ But
Agave goes into exile with her sisters Autonoe and Ino, who had shared in
the death of Pentheus. They too are separated from Cadmus. The reason is
perhaps that Cadmus symbolises the domestic religion of their home. From
him, as from their home, they must be exiled for ever.


THE ‘ALCESTIS’

Neither the _Alcestis_ nor the other two plays of Euripides which remain
for discussion are of very much importance from the point of view of
homicide-law. In the prologue[362] Apollo tells how he slew the Cyclops
who forged the thunder-bolt by which Zeus slew Aesculapius, Apollo’s
son, and how in consequence he went into bondage with Admetus of Pherae
for a period of one year. Thus Zeus plots the death of his grandson and
punishes his son for avenging it! The reason is that Zeus regards the
death of Aesculapius as justified, and therefore, as Apollo’s vengeance
is unjust, he must be punished. The penalty of bondage which is here
referred to may be the Pelasgian servitude which we have discussed in an
early part of this work,[363] or it may be a form of that same penalty
which was retained under the pollution-system, in pre-Draconian days when
it was indispensably connected with exile. There is here, however, no
reference to pollution or to purgation. Apollo was purified for slaying
the Python[364] but not for the slaying of the Cyclops! We cannot apply
to the Olympian Apollo the laws which were made for mortal men. Apollo,
unlike Hercules, could not be conceived as a man. It was from Olympus,
the abode of the Olympian gods, that he was banished. The obvious motive
for the legend is the association of Apollo with Admetus. Some reason had
to be assigned for this ‘exile’ of Apollo. We may suppose that a deed
of homicide was invented to explain this ‘exile,’ but that its details
were not worked out. The only real importance of such a legend is that it
affords a certain amount of evidence for the existence of servitude as a
homicide-penalty in early Greece.

Admetus is permitted by the Fates to live if he can find a substitute.
His wife Alcestis voluntarily dies in his stead. Was her death
attributable to Admetus? Was he her murderer? His father, Pheres, seems
to think so![365]

    I go: thou shalt entomb her, as thyself
    Her murderer. Look for vengeance from her friends.
    Acastus is no man if his hands fail
    Dearly t’avenge on thee his sister’s blood.

As Hercules, in this play, raises to life the dead Alcestis, we are freed
from the necessity of discussing the legal aspects of such a problem.
The whole plot of this play belongs to the supernatural rather than to
the natural order. The murder laws of Greece made no provision for such
contingencies.


THE ‘TROADES’

In the _Troades_ Cassandra foresees the murder of Agamemnon and the
vengeance of Orestes, and connects these tragic misfortunes with the woes
which were brought by the Atreidae upon the house of Priam. Aeschylus
has a suggestion of this sentiment in the _Agamemnon_.[366] To represent
Clytaemnestra and Orestes as mere instruments in the hands of Destiny may
be religiously orthodox to a superstitious people, especially in the Dark
Ages of prehistoric Greece, but it has no legal validity. Such sentiments
are really antagonistic to legal sanctions. Applied to Achaeans, they
are, we think, anachronistic. Murder is distinct from war, and murder
is not conceived as begetting murder, in the course of Destiny, until
post-Homeric times. In the decision of the Greeks to slay Astyanax, the
son of Andromache, as a reprisal for the adultery of Paris,[367] we
see an instance of hyper-vengeance, which is characteristic of hostile
belligerents. We cannot infer that amongst the Achaeans the punishment
for adultery was more severe than amongst the Pelasgians.[368] Astyanax
was not an adulterer! His punishment was a reprisal, and has therefore
no legal significance. Talthybius refers to a strange proposal on the
part of the Greeks, namely a proposal to set up a spear in the tomb of
Astyanax.[369] Now this spear is a symbol of future vengeance. It is
strange that such a symbol should have been set up by the party who
deserve and anticipate punishment. Moreover, we have seen[370] that this
custom was probably post-Homeric. The Achaeans did not credit their dead
spirits, after burial, with any local habitation in the tomb or with
any effective desire for vengeance. Here, the suggestion is clearly
intended by Talthybius, and possibly by Euripides, to bring some slight
comfort to Hecuba, the bereaved mother. We have referred to a passage
in Demosthenes,[371] in which a plaintiff, who was debarred from a
prosecution for bloodshed, because of his not having been akin in blood
to the deceased, was advised by the Exegetae to carry a spear at the
funeral. It was therefore rather a cruel piece of irony for Euripides
to suggest that by the setting up of this symbol—which had come, in
historical times, to indicate the absence of avengers—the Greeks intended
to express at once to Hecuba the hope of retaliation and to themselves
the hope of immunity from vengeance.


THE ‘HELEN’

The scene of the _Helen_ is laid in Egypt. We are told that the
ubiquitous Helen escapes with Menelaus from Egypt, having deceived by
a stratagem her amorous protector, Theoclymenus. She was aided in her
plans by Theonoe, the sister of Theoclymenus, and he, therefore, in
the anger of disappointed passion, proceeded to slay his sister. The
Dioscuri intervened in time to prevent the realisation of his purpose,
and all ends happily! Technically, Theoclymenus is guilty of attempted
kin-slaying, but the poet leads us to suppose that an ungovernable fit of
passion would, in such a case, be regarded as a complete extenuation. We
may infer from the words of the Chorus that the slaying of one’s kindred
was regarded with horror by races which were outside Greece. The Chorus
will not permit the death of Theonoe, even though they intervene at their
peril. They say to Theoclymenus[372]:

    Kill me. Your sister you with my consent
    Shall never slay: I rather would yield up
    My life on her behalf. It is most glorious
    To generous servants for their lords to die.

Euripides also makes the barbarian Thoas, King of the Tauric Chersonese,
gasp with horror when Iphigeneia, the priestess of Artemis, informs him
of the arrival of the matricide Orestes. When Iphigeneia says[373]:

    They came polluted with domestic blood,

he answers[374]:

    O Phoebus! This hath no barbarian dared.

Euripides, then, did not believe that the conception of kin-slaying as
a horrible and revolting act was an exclusively Grecian sentiment. When
therefore in the _Andromache_ he makes Hermione say[375]:

    Such is the whole abhorred barbarian race:
    The father with his daughter, the vile son
    With his own mother, with her brother too
    The sister sins; friends by their dearest friends
    Are murdered: deeds like these no wholesome law
    Prohibits: introduce not among us
    Such crimes....

we may attribute such an assertion to a mind inflamed with the jealousy
which a wife feels towards a concubine rather than suppose Euripides not
to have known that the horror of kin-slaying is an aboriginal universal
sentiment of the human race when once it has abandoned the cave of the
cannibal.

       *       *       *       *       *

We have now concluded our inquiry into the problem of blood-vengeance
in Attic tragedy. Nothing has been revealed by this inquiry which is
in conflict with the hypotheses which we have sought to establish in
this work, as to the various systems of blood-vengeance which existed
in Greece, from Pelasgian times to the age of the orators. While Attic
tragedy does not in itself contribute anything to our knowledge of these
various systems, there can be little doubt that an attempt, however
imperfect, to investigate the origin and nature of these systems is
indispensable for a proper appreciation of these dramatic masterpieces.
If our analysis of blood-vengeance in the works of the three great Attic
tragedians has not, in many cases, succeeded in establishing definite
clear-cut conclusions, this, we hope, will be attributed to the intrinsic
difficulty and obscurity of the subject. We can never be quite certain
whether any particular drama gives us (_a_) an antique unadulterated
legend; or (_b_) an antique legend which in course of evolution has taken
on new forms without any regard to the consistency or the historicity of
the tradition; or (_c_) whether the drama is based upon a late invention
which owing to skilful archaising takes on the garb and appearance of an
antique story, betraying perhaps, here and there, by its anachronisms,
the mind and atmosphere of its creator. It so happens that the attitude
to homicide or to religion which the Achaeans reveal was also taken up
by many individual Athenians of the Periclean age. Thus the indifference
to the gods which Sophocles attributes to Ajax was common to Achaeans
and to many Periclean Athenians. So the conception of homicide as a
matter for ‘private settlement’ which is found in Demosthenes, and the
survival, in outlying places, such as Macedonia, of family vendettas,
fierce and lawless, would have suggested to the mind of the dramatist
that there was no very wide gulf between the primitive and the historical
Greeks. Such a fact almost invites anachronisms. Nevertheless, we
frequently find in dramatic legends an atmosphere so antique, so unlike
that of fifth-century Athens, that we may assume, as the most probable
hypothesis, that these legends are not inventions, but have behind them a
long and, often, a chequered past.


FOOTNOTES

[1] _Hist. Gk. Lit._ p. 224.

[2] _Ib._ p. 225.

[3] _Ib._ 228.

[4] P. 229.

[5] See _Euripides the Rationalist_ (_passim_) and Introduction to
Aeschylus, _Choephoroe_, p. xxxvii ff.

[6] Eur. _Orestes_, 1370.

[7] _A.P._ 119.

[8] See _A.P._ 131-5.

[9] See _Themis_, 341 ff.

[10] _A.P._ 129.

[11] _Poetics_, 25.

[12] See Wedd, Introd. to _Orestes_, p. xvii ff.

[13] 15 ff.

[14] _Od._ iii. 307.

[15] _Electra_, 1254 ff.; _Orestes_, 1648 ff.

[16] 29-30.

[17] 1093-6.

[18] See _supra_, p. 308.

[19] _Supra_, p. 58 ff.

[20] 500 ff.; _infra_, p. 348.

[21] _Supra_, Book I.

[22] _Infra_, p. 348 ff.

[23] 957-8.

[24] 895 ff.

[25] _Od._ iii. 310.

[26] 1277.

[27] _Cf._ Soph. _Electra_, 1483.

[28] _Supra_, p. 236 ff.

[29] 1230.

[30] 1250.

[31] 840 ff.

[32] 1244 ff.

[33] _Supra_, p. 282.

[34] 1266 ff.

[35] _Supra_, p. 294. Such a conception is rendered possible by the
command of Apollo, which gives an extra-legal complexion to the case. In
strict law such a plea was probably inadmissible (Plato, _Laws_, ix. ch.
9).

[36] 1644 ff.

[37] _Laws_, ix. ch. 8.

[38] v. 67.

[39] _Supra_, p. 145 ff.

[40] See _infra_, p. 368.

[41] 445 ff.

[42] See 1664-5.

[43] Schol. ad Eur. _Orest._ 1640.

[44] _Electra_, 1254-75; _Orestes_, 1643 ff.

[45] 46-50.

[46] 75-6.

[47] 1292-7.

[48] _Laws_, ix. ch. 9.

[49] See 268 ff., 390 ff., 545 ff., 776, 1229.

[50] 414-416.

[51] 591-9.

[52] 492-506.

[53] 507-517.

[54] _Supra_, p. 76.

[55] _Supra_, pp. 122, 132.

[56] _Eum._ 685.

[57] See _supra_, p. 308.

[58] 256-7.

[59] 884 ff.

[60] Plato, _Apologia Socratis_, 36-42.

[61] _Supra_, p. 258 ff.

[62] _Ajax_, 749 ff.

[63] Eur. _Troades_, 900.

[64] Eur. _Hecuba_, 119 ff.

[65] _Troades_, 715, 780.

[66] viii. 117.

[67] 892-3.

[68] _Eum._ 212, 608.

[69] _Works and Days_, 180 ff.

[70] 898 ff.

[71] See _supra_, p. 225 ff.

[72] _Supra_, pp. 9, 47.

[73] 903-6. ὡσεὶ ἔλεγε νόθος πολίτης (Schol.)

[74] Cleophon was of Thracian descent. (Schol. ad v. 772.)

[75] 915.

[76] 914-15.

[77] 944-6.

[78] _Laws_, ix. ch. 12; _supra_, p. 231.

[79] 917 ff.

[80] _Supra_, p. 74.

[81] _Supra_, p. 59.

[82] 923-30.

[83] 932-42.

[84] _Supra_, pp. 58 ff.; 217.

[85] ix. 36.

[86] 941.

[87] 1300. Her miraculous translation to ‘heaven’ is not inconsistent
with, but rather, we think, confirms our opinion that she was slain.

[88] See, _e.g._, Herodotus ii. 113 ff.; Eur. _Helen_, 1640 ff.;
_Troades_, 875 ff.

[89] 1140.

[90] 1625.

[91] 1645.

[92] _Laws_, ix. chs. 8, 9.

[93] See _supra_, p. 256. The command of Apollo was an extra-legal
extenuation of Orestes’ act. This act therefore merited, though it did
not actually receive, the ‘forgiveness’ of Clytaemnestra.

[94] 1648 ff.

[95] _Laws_, ix. ch. 9.

[96] 1650.

[97] _In Aristoc._ 641, 27.

[98] _Infra_, p. 370 ff.

[99] _Supra_, p. 124.

[100] Schol. ad Eur. _Orest._ 1640.

[101] _Supra_, p. 163.

[102] See Plato, _Laws_, ix. ch. 8.

[103] 1643-1652.

[104] 1660-5.

[105] 765.

[106] _Supra_, p. 223 f.

[107] 765.

[108] _Supra_, p. 196.

[109] 1249 and 1285.

[110] 771.

[111] _Supra_, p. 163.

[112] _In Aristoc._ 635; see also Plato, _Laws_, ix. ch. 8.

[113] 1074.

[114] 1591 ff.

[115] _Supra_, p. 103.

[116] _Infra_, p. 375 ff.

[117] See Introduction to _Orestes_, p. xxvi ff.

[118] _Supra_, p. 332 f.

[119] _Supra_, pp. 309, 345, 348.

[120] 1625 ff.

[121] _Supra_, p. 344.

[122] 285 ff.

[123] _Supra_, pp. 123 ff.; 298 ff.

[124] _Eum._ 338-41.

[125] _Orestes_, 255-7.

[126] _Orestes_, 260-1.

[127] _Ib._ 580-84.

[128] _Iph. Taur._ 285-291.

[129] Glotz, _op. cit._ p. 45.

[130] _Iph. in T._ 1580 ff.

[131] _Iph. Aul._ 1615-20.

[132] _Supra_, p. 336.

[133] _Agamemnon_, 194 ff.

[134] See England, Introd. to _Iph. in T._ p. xii.

[135] iv. 103.

[136] See England, _op. cit._ p. xviii.

[137] _Op. cit._ p. xxi.

[138] 1020 ff.

[139] 1190 ff.

[140] 940 ff.

[141] _Supra_, pp. 337, 349.

[142] _Supra_, p. 360.

[143] _Supra_, pp. 193, 213.

[144] 940-946.

[145] 961-972.

[146] 976-982.

[147] See Callimachus, _Hymn to Artemis_, 173 ff.; England, _op. cit._ p.
xiii.

[148] _Supra_, p. 117 ff.

[149] _Supra_, p. 148.

[150] Eur. _Medea_, 1380 ff.

[151] 1223-5.

[152] Eur. _Androm._ 173-6.

[153] _Infra_, p. 421.

[154] 947-960.

[155] x. 49.

[156] _s.v._ χόες.

[157] _Ancient City_ (trans.), p. 78 ff.

[158] _Supra_, p. 87.

[159] _Supra_, pp. 175, 347.

[160] _Proleg._ p. 41.

[161] 955.

[162] _Loc. cit._

[163] _Supra_, p. 367.

[164] _Phoen._ 1585 ff.

[165] _Supra_, p. 323.

[166] _Ant._ 1012-1017.

[167] _Ant._ 1035-62.

[168] _Ib._ 1080 ff.

[169] Eur. _Supp._ 113 ff.

[170] _Ib._ 940 ff.

[171] 16-19 (trans. A. S. Way); _cf._ 310 ff.

[172] 524-7; _cf._ 560 ff.

[173] 669-72.

[174] Eur. _Supp._ 1207; _cf._ Pausanias, ix. 18.

[175] _Phoenissae_, 774-7 (trans. Woodhull); _cf._ 1646.

[176] _Ib._ 1447-50.

[177] See 360 ff. and 465 ff.

[178] _Supra_, pp. 216, 323.

[179] _Supra_, pp. 311, 317.

[180] _Od._ xi. 271 ff.; _supra_, p. 55.

[181] _Homer and History_, p. 52.

[182] _Supra_, p. 21.

[183] See _supra_, p. 143.

[184] _Supra_, pp. 193, 213.

[185] _O.C._ 1255-1345; _ib._ 1341.

[186] _Phoenissae_, 1585-94.

[187] _O.C._ 87 ff.

[188] _Phoen._ 1703-5.

[189] _Phoen._ 59-68.

[190] _Supra_, p. 376.

[191] _Supra_, pp. 195, 258.

[192] _Phoen._ 1705 ff.

[193] Pausanias, i. 28.

[194] i. 28.

[195] _Phoen._ 64.

[196] _Ib._ 1593.

[197] _Od._ xi.

[198] _Il._ ii. 660 ff.

[199] _Dorians_, i. 411 ff.

[200] v. 67.

[201] 977 ff.

[202] 840-75.

[203] 1146-52.

[204] 1253-80; 1310-1364.

[205] 1229 ff.

[206] 462, 1285.

[207] _Supra_, p. 163.

[208] _Il._ xix. 98-9.

[209] _H.F._ 1285.

[210] _Supra_, p. 234 ff.

[211] 1281-90.

[212] Soph. _O.C._ 490-660; _supra_, p. 317.

[213] 1311-12 (attributed to Theseus by the MSS.).

[214] 1322-5.

[215] Note _ad loc._

[216] _Laws_, ix. ch. 8; _supra_, p. 163.

[217] See 1422.

[218] 1333.

[219] 15 ff.

[220] _Supra_, p. 163.

[221] ix. 41.

[222] Eur. _H.F._ 19.

[223] _Ib._ 13.

[224] _H.F._ 567, 754.

[225] _Supra_, p. 327.

[226] _Supra_, pp. 20, 283.

[227] 732.

[228] 755-6.

[229] i. 32.

[230] _i.e._ when he died.

[231] 50 ff.

[232] Pausanias, i. 29.

[233] 997 ff.

[234] 238 ff.

[235] i. 28.

[236] _Supra_, p. 251.

[237] 250-252.

[238] δίκης κυρήσειν.

[239] See _supra_, p. 164 ff.

[240] _Supra_, p. 263.

[241] _Supra_, p. 164 ff.

[242] 464-470.

[243] _Supra_, p. 327.

[244] 1050.

[245] 1009 ff.

[246] 1022 ff.; 1045 ff.

[247] 961-980.

[248] 1010.

[249] 1050.

[250] 1028 ff.

[251] 1053.

[252] 1024.

[253] _Supra_, p. 379.

[254] _Supra_, p. 223.

[255] βούλευσις, in the sense of a plot to kill which is not realised.

[256] See introd. to _Medea_, p. xi ff.

[257] 1334.

[258] 485.

[259] βούλευσις, when the plot was realised.

[260] _Supra_, p. 223 f.

[261] 735.

[262] _Od._ xi. 253 ff.

[263] Pindar, _Pyth._ iv. 95 ff.

[264] 735.

[265] Eur. _Phoen._ 410-425.

[266] _Supra_, p. 116.

[267] 709 ff.

[268] 746-7 and 749-51.

[269] See 796, 850, 1268, 1383.

[270] _Supra_, p. 234 ff.

[271] 846 ff.

[272] 1321-2.

[273] 1378 ff.

[274] 1386 ff.

[275] 1389 ff.

[276] _Supra_, p. 365.

[277] _Supra_, p. 234.

[278] 1231 ff.

[279] 1279 ff.

[280] 34-7. I venture to modify Woodhull’s version of v. 37—ἐναυσίαν
ἔκδημον αἰνέσας φυγήν,—as he renders ‘to _voluntary_ exile submitting for
one year.’

[281] i. 28.

[282] _Supra_, p. 245.

[283] _Laws_, ix. ch. 9.

[284] _Supra_, p. 214.

[285] 950 ff.

[286] _Supra_, p. 240 ff.

[287] 800.

[288] 877 ff.

[289] Homer, _Il._ vi. 160 ff.

[290] 887-898, omitting 891-892.

[291] 974, 1094.

[292] 1195 ff.

[293] 1282 ff.

[294] _Supra_, pp. 58 ff.; 76.

[295] _Supra_, p. 223.

[296] i. 22.

[297] i. 3.

[298] _Theseus_, 10.

[299] Paus. i. 22.

[300] _Supra_, p. 178.

[301] Paus. i. 28.

[302] _Ib._ i. 22.

[303] Plutarch, _loc. cit._

[304] Through his mother, Aethra.

[305] Eur. _Hipp._ 974, 1094.

[306] Müller, _Dorians_, i. 265 ff.

[307] _Supra_, p. 224 f.

[308] _Supra_, p. 326 f.

[309] 1106 ff.

[310] 1222 ff.

[311] 1254 ff.

[312] 1259.

[313] 1275 ff.

[314] 1291 ff.

[315] 1301.

[316] 1306.

[317] 1308.

[318] 1329.

[319] From 750 B.C. onwards.

[320] 1330 ff.

[321] 1000 ff.

[322] 1231 ff.

[323] 802 ff.

[324] _Supra_, p. 75.

[325] _Ath. Pol._ ch. 57; _supra_, pp. 192, 251.

[326] According to the usual interpretation of Aristotle, _supra_, pp.
225, 251.

[327] _Supra_, p. 225.

[328] 333 ff.

[329] _Cf._ 496.

[330] 450.

[331] 174 ff.

[332] _Supra_, p. 173.

[333] 1106.

[334] 1161 ff.

[335] 1241-2.

[336] 1240.

[337] _Supra_, p. 195.

[338] Glotz, _op. cit._ p. 473 ff.

[339] 1232 ff.

[340] 1136-1144.

[341] 1085-6.

[342] _Supra_, p. 83.

[343] _Supra_, p. 76.

[344] 1243-51.

[345] 714-20.

[346] 789-97.

[347] 534-8.

[348] _Supra_, p. 106.

[349] 260 ff.

[350] 40.

[351] _Bacchae_, 240 ff.

[352] 356 ff.

[353] 995 ff.

[354] 1202-15.

[355] See _supra_, p. 325 ff.

[356] 1250.

[357] 1296.

[358] 1330 ff.

[359] 1363, 1379.

[360] 1350.

[361] _Laws_, ix. ch. 9.

[362] 5-7.

[363] _Supra_, p. 44 ff.

[364] Plutarch, _Greek Questions_, 12; Aelian, _Var. Hist._ iii.

[365] 730 ff.

[366] _E.g._ 333 ff.

[367] _Troades_, 705 ff.

[368] _Supra_, p. 58 ff.

[369] 1150 ff.

[370] _Supra_, p. 122.

[371] _Contra Euerg. et Mnesib._ 1160, 15; _supra_, p. 182.

[372] 1639-41.

[373] _Iph. in T._ 1171.

[374] 1174.

[375] _Androm._ 173 ff.




GENERAL CONCLUSION


Having now concluded our inquiry into the origin, the nature, and the
evolution of Greek systems of blood-vengeance, it may be desirable
to give here a brief synoptic summary of the theories which we have
sought to establish. Our summary naturally falls into two sections: (A)
chronological and (B) literary.

(A) (1) From the earliest times there existed in Greece a code of
homicide-customs which is a well-known characteristic of the tribal or
‘group’ system of primitive human society; wergeld was the dominant
penalty, and exile or death, or, possibly, servitude were alternative
penalties; there was regular trial and collective control. We may call
the system ‘private vengeance,’ but it was fundamentally different from
‘vendetta.’ This system has left only very slight traces of its existence
in extant Greek literary or inscriptional remains: while it persisted
in a suppressed or modified form all through the course of ancient
Greek history, its presence was obscured by other developments, social,
religious, and political.

(2) Thus there was, in the first place, the Achaean domination (say,
1300-1100 B.C.) which is the dominant atmosphere of the Homeric poems;
we have seen that the Achaean system in regard to homicide made death
the normal penalty, but that this penalty could be avoided in practice,
though not in theory, by the flight of the slayer. There was no regular
or prescribed trial, but there existed a kind of social etiquette or a
potential military discipline which established a general distinction
between murder and vengeance, and which, while omitting any nice points
of discrimination in estimating the degrees of guilt, nevertheless
prevented any wholesale system of vendetta.

(3) When in the ‘Hesiodic’ age (1000-750 B.C.) various migrations and
economic changes disturbed the peaceful operation of clan-laws, and no
form of control, either tribal or military, could be said to exist in the
greater part of Greece (excluding, perhaps, the Attic State), then arose,
as we think, in its full vigour the barbarous vendetta system which has
left so marked a trace in Greek legends: then rose to prominence the
belief in ancestral curses, which were held to fall upon children even in
the fourth generation. Then came into being the blood-thirst of the dead,
the mutilation of the murdered corpse, the deprivation of burial—all the
barbarisms of collective hereditary vendetta.

(4) Into this state of chaos there came, as it were, by the foresight
of the gods, in the seventh century, the ‘Apolline’ religious code. The
murderer now becomes god-hated: he is shunned by society: all men must
rise in horror against him, and if he is guilty they must either slay him
or banish him for ever. Courts must operate, for murder, if for nothing
else. The right of suppliants must be respected at least till guilt is
proved. Wergeld is abolished, but a minor appeasement of the relatives is
permitted after exile, for minor degrees of guilt.

(5) Almost contemporaneously came the evolution of the synoekised Greek
State. A compromise between the old and the new ideas produced the laws
of Dracon and the historical murder-codes of Greece. The State now takes
over the execution, as well as the trial of homicides. The avenger of
blood gives place to the Public Executioner. Parricide and kin-slaying
are punishable with death. The property of wilful murderers is
confiscated to the State. Courts which at first have general jurisdiction
specialise in certain kinds of homicide, and their specialised functions
are stereotyped in law. The personnel of these courts undergoes
modifications which keep pace, in the main, with the advance of democracy
to complete political power.

(B) (1) We have seen that the homicide references in Homer can only be
properly understood by assuming a predominance, in legend or in the
atmosphere of the poet, of the Achaean system of vengeance, and the
existence of faint but unmistakable echoes of the Pelasgian wergeld
system.

(2) Of the Hesiodic period the poems of Hesiod are the only authentic
evidence, and such evidence is obscure. We may however supplement
it indirectly by arguments from survivals, and by the argument of
‘elimination.’

(3) Of the Apolline or historical system we need not review the evidence
which has been given at length in our Second Book. This evidence has been
examined and interpreted by many modern scholars. We have indicated what
we considered the most probable interpretation of matters which were
open to doubt, especially when the solution of the problem was important
for the analysis of blood-vengeance in Attic tragedy. We have sought to
prove that Plato’s homicide code should be regarded as an important and
indispensable contribution to the study of Greek homicide-law. However
difficult the analysis of the references to homicide in Attic tragedy may
have been, without Plato any such analysis would have been impossible.




INDEX

NOTE:—The following Index is intended merely as a supplement to the Table
of Contents, and is divided, for convenience, into four sections: (I)
subjects discussed: (II) modern authors cited: (III) persons, legendary
and historical, mentioned in connexion with homicide: (IV) technical
Greek terms.


I

  adultery, 58 f., 74, 217, 356

  Areopagus, 53, 94, 192, 194, 217 f., 221, 225, 243 ff., 248, 250-5,
        263, 269-74, 279, 287 ff., 292 ff., 298, 310, 336, 340, 343,
        345, 351, 359 ff.

  Bouphonia, 246 f.

  Burial, rights and duties of, 87
    beliefs connected with, 106
    refused to murderers, 223
    of enemies in war, 379, 394

  Canones Wallici, 9, 54

  Delphinium court, 53, 94, 169, 214 f., 245, 249 f., 254, 263

  Eleven, the, 249, 257, 262

  Ephetae, the, 137, 158, 192, 197, 205, 249, 252, 263, 269 ff.

  Erinnyes, the, 97, 99, 105, 109 ff., 113 ff., 120 ff., 145, 148, 151,
        155, 166, 174 f., 289 ff., 297 ff., 307, 342, 345, 360, 366
        ff., 372

  Eupatridae, the, 136 f., 266 f., 289

  Exegetae, the, 137, 147, 158, 169, 182, 192, 260, 262, 267 ff.

  Exile penalty for homicide:
    amongst the Pelasgians, 22-57
    amongst the Achaeans, 65 ff.
    in historical Greece, 143 ff., 157, 159, 161 ff., 164, 171, 173,
        207 ff., 209 ff., 213, 218, 221, 225, 234, 237 ff., 247, 249
        f., 256 ff., and Book III _passim_

  Hebrews, homicide laws of the, 3, 140, 201

  Heliastic courts, 249, 253

  kin-slaying, Pelasgian penalty for, 47, 353
    historical penalty for, 181, 233 ff., 401 ff.

  land-tenure, Homeric, 15 ff.

  Nekuia, the, 104 ff.

  Orphism, 240 ff., 401

  Palladium court, 53, 94, 204, 206, 245 f., 248, 250 f., 254, 263, 272

  Pantheon, Homeric, 101 ff.

  Phreatto court, 247, 249 f., 256, 263, 327

  private settlement for homicide, 143, 146, 173-190, 209, 213, 221

  Prytaneum court, 91, 197 ff., 202 ff., 246, 249 f., 256, 263

  sanctuary, right of, 80, 94, 406

  Semnai Theai, 146, 148, 298 ff.

  Servitude, penalty of, 44, 330, 363, 418

  Spartan homicide laws, 130 f., 158, 173

  wergeld, 2, 7 ff., 24 ff., 32, 34 ff., 41 ff., 44, 88, 123 f., 124,
        143, 146, 173



II

  Bury on Homeric homicide customs, 23, 78, 79
    on origin of trials for homicide, 92 ff.
    on homicide-purgation, 111
    on the Ionian tribes, 135 f.
    on the Phoenicians, 138 f.
    on the _Eumenides_ of Aeschylus, 287

  Caillemer on parricide, 234

  Coulanges, Fustel de, on the phratry, 82, 88
    on local Attic magistracies, 83, 135, 199
    on religious aspect of homicide, 95
    on anthropomorphism, 100
    on homicide-purgation, 111

  Eichhoff on Homeric homicide customs, 23

  Gilbert on origin of trials for homicide, 80, 93, 263
    on the Attic tribe-kings, 83
    on the Dorian tribes, 130
    on State-execution of death penalty, 226 ff.

  Gilbert on the Ephetae, 264 ff.
    on the Exegetae, 267
    on the Areopagus, 269

  Glotz on the meaning of ποινή, 28 f.
    on the Shield of Achilles, 40
    on the penalty of servitude, 44
    on homicide in Homeric Greece, 58, 68, 80
    on the historical survival of clan courts, 83
    on the judicial aspect of kin-slaying, 86, 181, 233 f.
    on the question of γραφὴ φόνου, 258 ff.
    on confiscation and wergeld, 219
    on State-execution of death penalty, 226, 231 f.
    on the meaning of θέμιστες, 90
    on the Prytaneum court, 92
    on the abolition of wergeld, 92, 179 ff., 222
    on homicide-purgation, 112, 117, 139
    on the Middle Age of Hellenism, 132 ff.
    on Solon’s legislation, 133
    on ‘private settlement’ for homicide, 143 ff., 174 f., 186 ff.,
        198, 209, 221 f.
    on ‘appeasement’ in cases of manslaughter, 198, 207 ff.
    on the Ephetae, 264 ff.
    on ἀσυλία, 145, 166, 179 ff.

  Grote on homicide customs in Homeric Greece, 23
    on Spartan institutions, 130

  Harrison (Miss) on religious aspect of homicide, 96
    on anthropomorphism, 100
    on Olympian and Chthonian ritual, 102, 114
    on the Erinnyes, 110, 113 ff., 123
    on homicide-purgation, 110, 142
    on the Year-Spirit, 334
    on the Pitcher Feast, 377

  Hogarth on early Boeotia, 131

  Holm on Spartan institutions, 130

  Jevons on homicide in Homeric Greece, 23, 78
    on the _Eumenides_ of Aeschylus, 287
    on Greek drama, 303
    on Euripides, 332 ff.

  Leaf on the historicity of Homer, 12 ff.
    on tribalism in Homer, 21
    on homicide in Homer, 25 ff., 66, 83, 96
    on the Shield of Achilles, 25 ff., 89, 90
    on kin-slaying in Homer, 95
    on Achaean religion, 100

  Leaf on Chthonianism in Homer, 103
    on post-Homeric tribalism, 127
    on the Dorian conquest, 129
    on the Ionian tribes, 135
    on Boeotia, 131

  Lipsius on the Shield of Achilles, 35, 39 f.
    on βούλευσις, 224 f.
    on the Delphinium court, 255

  Mahaffy on prehistoric Greece, 138

  Maine on origin of private property in land, 15 f.
    on the sacramentum, 40
    on the θέμιστες, 90
    on Indian village communities, 82
    on Indian tribal police, 228

  Monro on the Shield of Achilles, 34

  Müller (C. O.) on homicide-purgation, 52, 65, 111 ff., 152 ff.
    on the origin of trials for homicide, 93
    on the religious aspect of homicide, 96
    on the Erinnyes, 120
    on ‘private settlement’, 174, 177, 209
    on the δικαὶ ἀψύχων, 197
    on ‘appeasement’, 207 f.
    on the Ephetae, 265
    on the Exegetae, 267
    on the Areopagus, 269 ff.
    on the trial of Orestes, 297
    on Attic mythology, 135
    on the Dorian Apollo, 155
    on Thessaly, 128
    on Sparta, 130
    on Boeotia, 131

  Murray, G., on primitive religion, 98
    on the Year-Spirit, 334

  Philippi on homicide-purgation, 153
    on ‘private settlement’, 174
    on the Draconian inscription, 194 ff.
    on the δικαὶ ἀψύχων, 197
    on the penalties for adultery, 217
    on confiscation, 221
    on the γραφὴ ἀσεβείας, 262
    on the Ephetae, 264 f.

  Ridgeway on the Homeric poems, 13
    on Homeric land-tenure, 15 ff.
    on the Shield of Achilles, 34
    on Pelasgian and Achaean religion, 104 ff.
    on the decline of Achaean power, 128
    on the Boeotians, 131
    on the place of Orestes’ trial, 296

  Seebohm, F., on wergeld in Wales, 7 ff.
    on the Welsh tribes, 20 f.
    on _Beowulf_, 48
    on the Wisigoths, 53

  Seebohm, H., on tribalism in Homer, 13, 15
    on Achaean offerings to the dead, 108

  Verrall on the Erinnyes in Aeschylus, 123
    on the _Eumenides_ of Aeschylus, 288, 290
    on the trial of Orestes, 297
    on Medea, 394

  Wedd on the _Orestes_, 364 ff.
    on Euripides, 398 ff.



III

  Achilles, 29, 31, 139

  Admetus, 418

  Adrastus, 70, 379

  Aegisthus, 72, 338

  Agamemnon, 19, 72, 83, 413

  Agave, 416 f.

  Ajax, 32, 319, 321, 325, 416

  Akamas, 69, 76

  Alcestis, 418

  Alcmaeon, 141, 157

  Amphinomus, 60

  Antigone, 319-25

  Arthmius (ap. Dem.), 188

  Astyanax, 419

  Athamas, 116, 158

  Bellerophon, 18, 59, 110, 111, 142, 151

  Cleisthenes (of Sicyon), 156, 341

  Clytaemnestra, 72 ff., 97, 125, 150, 175, 276-301, 311, 336 ff., 349
        ff., 419

  Creusa, 172, 229, 405 ff.

  Croesus, 139

  Diodorus (ap. Dem.), 181, 235, 260

  Diomedes, 352

  Dionysodorus (ap. Lysiam), 177

  Electra, 304-9, 335-42

  Epeigeus, 66

  Epimenides, 152

  Eupeithes, 60, 76

  Eurystheus, 391 ff., 394

  Euthyphro, 147, 182, 237, 259

  Halirrhothius, 58

  Hecuba, 83, 412-15

  Helen, 347, 420 ff.

  Hercules, 44, 173, 329 ff., 385 ff.

  Hippolytus, 400-5

  Hyettus, 58

  Ion, 172, 405-8

  Iphigeneia, 151, 281 ff., 311, 336, 369 ff.

  Ixion, 155, 168

  Lycophron, 66

  Medea, 394-400

  Medon, 66

  Meleager, 70, 121

  Menelaus, 348, 409

  Menestratus (ap. Lysiam), 230

  Nausimachus (ap. Dem.), 187

  Nausithous, 18

  Neoptolemus, 229, 408-11

  Odysseus, 32, 50 f., 67, 104 ff., 325-9

  Oedipus, 55, 75, 150, 170 ff., 304, 310-19, 378-84

  Orestes, 60, 72 ff., 112, 120, 124 f., 151 ff., 169 f., 172 f., 185
        f., 214 f., 229, 244, 255 f., 276-301, 305, 336 ff., 344 ff.,
        360, 374-8, 408-12, 419

  Pactyas, 168

  Patroclus, 29, 56, 75

  Phoenix, 32, 67, 69, 121

  Polyneices, 302, 317 f., 321, 323 f., 378, 380

  Proetus, 59, 110, 142, 151 f.

  Pylades, 151, 309, 362 f.

  Teiresias, 106 ff.

  Teucer, 319, 327 ff.

  Theoclymenus, 21, 65

  Theocrines (ap. Dem.), 88, 183 f.

  Theseus, 68, 76, 245, 379, 385-94, 400 ff.

  Tlepolemus, 47, 108

  Tydeus, 71, 396

  Tyndareus, 62, 335, 348



IV

  ἁγνιτής, 52, 112

  ἀγορά (Homeric), 35

  ἀνδροληψία, 164 ff., 239

  ἀνδροφόνος, 237

  ἀπενιαυτίζειν, 212

  ἄποινα, 28 f.

  ἄριστίνδην, 195, 198, 264

  ἀσυλία, 145, 163

  ἄτιμία, 144, 189, 219

  ἄφεσις, 178

  ἀφυλαξία, 147, 196, 213

  βούλευσις, 193 f., 224, 251, 325, 405, 409

  γραφὴ ἀσεβείας, 180, 260 ff.

  γραφὴ φόνου, 181, 258 ff.

  δικαὶ ἀψύχων, 93, 197

  δικασπόλοι βασιλῆες, 89

  ἔμφυλος, 21, 61, 65, 168

  ἐσέσθων (from ἔσίημι), 207

  θέμιστες, 90

  ἱλασμός, 96

  ἴστωρ, 43

  καθαρμός, 96, 118

  καθάρσιοι θεοί, 145, 152, 169

  μασχαλισμός, 122, 308

  μοιχάγρια, 59, 217

  ποινή, 28 ff., 31

  πωληταί, 221

  φυλοβασιλεῖς, 88, 91

  χόες, 364, 375


               _Printed in England at THE BALLANTYNE PRESS
                   SPOTTISWOODE, BALLANTYNE & CO. LTD.
                        Colchester, London & Eton_