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.