Book II — From Homer to Dracon
Chapter I Social and Legal Transitions
Section I: Political changes in post-Homeric times: fall of Achaean Empire and its causes: post-Homeric migrations: Achaean survivals: the Hesiodic age of chaos: tribal stability and decay: evolution of the Attic State: aristocracy and democracy.
Section II: Religious and legal transitions in post-Homeric times: Asiatic-Greek intercourse: compromise between Asiatic and Greek ideas adopted in regard to homicide: origin of Apolline purgation-system: rise of Apolline influence: organisation of theocratic nobles: Apollo and pollution: extradition: origin of the laws of Dracon: proofs of author’s theory from Greek legends, from Plato and Demosthenes: pollution doctrine and wergeld: question of ‘legality’ of ‘private settlement’ for homicide in historical Athens.
Section I
Less than a hundred years1 after the Trojan war, and some time about the year 1100 B.C., the great and glorious rule of the Achaeans over Greece came to an end. ‘Greece,’ as Leaf puts it,2 ‘relapsed from the temporary union imposed upon it by its rulers into its normal congeries of loosely coherent cantons.’ The Achaeans did not, of course, entirely disappear, but they ceased to maintain that unified control and domination over Greece which they had enjoyed for two or three centuries. The causes of this change are variously estimated. Historical analogies, such as that of the Normans in England and in Sicily,3 suggest in general the brief duration of such a hegemony. ‘The domination of a small military caste over a large subject population contains of necessity,’ says Leaf,4 ‘the germs of its own destruction....’ ‘The Iliad itself gives us vividly, in the portrait of Agamemnon, the inherent weakness of all hereditary military despotisms.... The time came... whether through the effort of the Trojan war which had reduced their numbers, or through lack of moral grit following on too long a tenure of power, when the Achaeans had to cast in their lot with their former vassals... the group system resumed its sway and the Achaeans were drawn into it.’5 Ridgeway, arguing from analogous instances, attributes the decay of Achaean vigour partly to climatic influences, partly to the enervating effects of luxury and power. In regard to this latter factor, he says6: ‘It is a known fact that the upper classes in all countries have an inevitable tendency to die out... the dwindling of the master races in the Mediterranean, whether they were Achaeans, Celts, Goths, Norsemen or Turks, must be in part accounted for by the mere fact that they formed in each case the upper and ruling class, and could therefore afford to lead a life of luxury which was the very bane of their race.’ For our part we are convinced with Leaf7 that ‘an invasion of Southern Greece by rude tribes from the north or north-west swept away the Achaean civilisation after the Homeric age’; that a military confederation of hereditary monarchs and nobles, such as that of the Achaeans, could not have lost its unified control if these inherent factors of disintegration had not been supplemented by an invasion from without.
O. Müller8 has pointed out that in Thessaly, the former realm of Peleus and Achilles, there existed in historical times three strata of social and political privilege: (1) the Thessalians, post-Homeric immigrants, who ruled directly over the central territory, including the towns of Larissa, Crannon, Pharsalus, Iolcus. (2) Perioeci or semi-independent vassals, such as the Perrhaebians, the Magnesians, and the Phthiotian Achaeans, who paid tribute and were bound to assist in war. (3) Penestae, of Pelasgian stock, like the Helots of Sparta, who cultivated the land and served in war, who had private rights but no political privileges, who were, in a word, serfs, but not slaves. He mentions, further,9 that the Achaeans of the north coast of the Peloponnese remained in towns and fortified strongholds, keeping entirely aloof from the natives; they were still conquerors here, though they had become vassals elsewhere. In Sparta there appears to have been a mingling of Achaeans and Dorians. Thucydides says10 that here ‘the few rule over the many, having obtained sovereignty by victory in the field.’ That this victory was not very decisive is suggested by the view, which is commonly held,11 that one of the two Royal families of Sparta was Achaean. The Perioeci of Laconia were always considered Achaeans12; there were about a hundred towns of Laconian Perioeci, both inland and on the coast; they paid tribute to Sparta, but they had a monopoly of trade and commerce, and in the time of Nabis were liberated and federated as independent states of the Achaean league.13 The Helots, of course, were serfs. They tilled the soil, and lived in hamlets which made up the greater part of the town of Sparta. They were probably Pelasgians, though they are called Achaeans by Theopompus.14 Similarly, in Argos and in Corinth there are traces of pre-Dorian peoples who can probably be regarded as including some remnants of the Homeric Achaeans.15
Leaf suggests16 that the Dorians may have followed methods of conquest similar to those of the Achaeans, yet he has no doubt that they were identical in social organisation with the Pelasgians.17 ‘Hellenism as we know it,’ he says, ‘is founded on tribal distinctions, beginning with the great racial divisions of Dorian, Ionian, and Aeolian in the wide sense—the general name for all which did not belong to the other two;—passing thence to the local state, Athenian, Spartan and the rest. Each of these again is divided internally by tribe, clan, and family systems of the most complicated nature. Upon these ramifying subdivisions is based the polity, and largely the religion, of classical Greece.’
This statement is of first-rate importance for our theories concerning post-Homeric homicide. It means, in effect, that, in spite of conflicts and migrations, the dominant Hellenic or post-Homeric Greek society was based on clan and tribal organisations similar to those of the early Pelasgians. The militarist Achaeans of the Iliad and the Odyssey must then be regarded as a solitary accidental ephemeral phantom which crossed the stage of Grecian history never to return. The Achaeans who survived the invasions either remained in isolated groups as in Achaea and in South Thessaly, where they seem to have preserved for a time their military character,18 though they may, in course of centuries, have evolved the mechanism of clan life: or they became subject Perioeci, and were rapidly merged in tribal organisations, or they were accepted as partners in government, as at Sparta, at Argos, at Corinth, and at Sicyon, and, like the Roman Patres minorum gentium, developed along the lines of tribal society. Their peculiar Homeric character disappeared: they were Hellenised—which is to say, with Leaf,19 that they were ‘drawn into’ the ‘group-system,’ which, after Homer, ‘resumed its sway.’
It was perhaps because of special circumstances that Sparta developed along peculiar lines of a quasi-Achaean and non-Hellenic kind. Thus, Müller holds20 that the Spartans represent a continuation of the heroic age, a system of military rule over agricultural classes. So Holm21 says that ‘The Spartan monarchy was a continuation of that of the Homeric age, only its authority was more strictly defined and became gradually more limited.’ Grote,22 criticising the opinion of Müller, who holds that the Spartans were typical Dorians, maintains that the ‘institutions of Sparta were peculiar to herself, distinguishing her not less from Argos, Corinth, Megara... than from Athens or Thebes.’ Crete, he says, was ‘the only other portion of Greece in which there prevailed institutions in many respects analogous, yet still dissimilar.’ The creator or inventor of the peculiar Spartan character, was, he thinks, Lycurgus. We consider these opinions much more probable than that of Gilbert,23 who believes that the three Dorian tribes, known as Hylleis, Dymanes, Pamphyloi, existed in the earlier days, at Sparta, as a social organisation. The reference of Demetrius of Scepsis (about 100 B.C.) to the existence of twenty-seven phratries and nine tribes at Sparta, gives, of course, no basis for assuming their existence in post-Homeric times. We have a special reason for emphasising the peculiarity of Spartan institutions. A solitary reference in Xenophon24 to a penalty of perpetual exile for involuntary homicide at Sparta, in contrast with the well-known penalty of temporary exile at Athens, has been taken to justify the opinion that the murder-laws of Athens were peculiar to herself. But, in our view, the peculiarity of Sparta25 militates against the validity of such a conclusion. We hope to prove more clearly at a later stage that this conclusion is false.
The social evolution of post-Homeric Boeotia is a subject on which a wide diversity of opinions appears to exist. Ridgeway26 thinks that the Boeotians were Achaeans: Leaf27 supposes that they were Thessalians: Müller28 believes that they were Pelasgian Aeolians driven out of the land which was afterwards called Thessaly, by invading Thessalians. Leaf argues29 that the Achaeans did not occupy Boeotia at the time of their domination in Greece, but we do not see why they may not have occupied that district at a later date. Bury30 contrasts the ‘Boeotian conquerors’ with the ‘older Greek inhabitants’ of Boeotia: Hogarth31 distinguishes between Aryan Boeotians and the non-Aryan Asiatic Cadmeans of Thebes. We cannot attempt to decide between these various opinions, and, fortunately, it is not necessary that we should do so. We have indicated the probable fate of the Achaeans after the fall of Troy, and for the rest we may be satisfied with the description of Thucydides.32
‘The country which is now called Hellas was not,’ he says, ‘regularly settled in ancient times. The people were migratory and readily left their homes whenever they were overpowered by numbers. There was no commerce... the several tribes cultivated their own soil just enough to obtain a maintenance from it. They were always ready to migrate. The richest districts were most constantly changing their inhabitants.’ Thucydides mentions, as rich districts, Thessaly, Boeotia and the Peloponnese (except Arcadia). Attica, however, of which the soil was poor and thin, enjoyed, he says, a long freedom from civil strife and retained its original inhabitants. Hence ‘... the Athenians33 were the first who laid aside arms and adopted an easier and more luxurious mode of life.’ Again he points out34 that ‘... Even in the age which followed the Trojan War, Hellas was still in a state of ferment and settlement and had no time for peaceful growth. The return of the Hellenes from Troy after their long absence caused many changes; quarrels too arose in every city, and those who were expelled went and founded other cities... a considerable time elapsed before Hellas became finally settled... after a while she recovered tranquillity and began to send out colonies.’
Glotz35 paints a lurid picture of the homicide customs of what he calls the Middle Ages of Hellenism (Le Moyen Age hellénique). ‘Passé, le temps où toutes les forces du groupe se coalisaient spontanément, instantanément, contre toute agression, d’où qu’elle vint. Le meurtrier riche et puissant n’avait plus à craindre un aussi grand nombre de vengeurs: il n’était plus contraint de fuir par un aussi formidable soulèvement de haines.... Le meurtrier d’un parent pouvait avoir des accomplices ou trouver des complaisants parmi ses plus proches.... Ainsi les homicides commis à l’intérieur d’une famille étaient moins sûrement punis à l’époque où s’organisèrent les tribunaux de l’Etat que dans la période précédente, où la justice du γένος avait encore toute son efficacité.... Il y eut un moment où vraiment, dans certains cas, le parricide n’avait rien à redouter d’aucune justice.’ The references which Glotz here makes to the control exercised by the clan in cases of kin-slaying are quite in harmony with our theory of the nature of Pelasgian homicide customs, but they are quite inconsistent with Glotz’s general hypothesis as to the nature of Homeric blood-vengeance. This inconsistency is to be explained by the absence of that distinction between the Achaean and the Pelasgian attitude to homicide which we have made the basis of our reasoning. Moreover, Glotz is not quite sound in supposing that the age of chaos began about the year 800 B.C. The date of Hesiod is now generally regarded as approximately 850 B.C., and the condition of things which he depicts must have existed for a considerable time before that date. It was not a temporary or spasmodic condition of things. Substituting, therefore, the dates 1100 B.C.-700 B.C. for Glotz’s figures 800 B.C.-600 B.C. as the time-limits of the age of chaos, we may accept as trustworthy Glotz’s description of the Dark Ages. He quotes a Hesiodic passage to which we have already called attention.36 ‘Rien que désunion de père à enfants, d’hôte à hôte, d’ἑταῖρος à ἑταῖρος: plus d’amour fraternel, comme jadis. Vite on jette l’opprobre sur les parents qui vieillissent: on leur parle un langage dur et insultant, impie, sans souci de la vindicte divine: on refuse à la vieillesse de parents les vivres qu’on a reçus d’eux dans l’enfance: car on ne connaît que le droit de la force.... Pas d’égards pour la bonne foi, la justice, la vertu: au crime et à la violence tous les honneurs.’ Into this chaotic condition, he says,37 came the new religious doctrine of homicide as a pollution. ‘La religion force la société à intervenir dans les affaires de sang intrafamiliales, et la société agit non pas contre le coupable mais contre la famille qui refuse d’agir.... Une idée nouvelle se fait jour dans l’esprit des Grecs, l’idée de la souillure qui s’attache à l’homicide... la purification du meurtrier n’est pas une coutume primitive... n’était pas connue à l’époque homérique.’
In many such passages Glotz implies that in the Hesiodic age there was a general weakening of tribal authority and of clan-law, a break-up of the power of control exercised by the kindred, the phratry, and the tribe over their members, in cases of homicide, and in other matters.38 Yet when Glotz comes to discuss the Solonian legislation, we find him still speaking39 of an anti-clan policy, of the desire of Solon to weaken the clans. ‘Solon,’ he says, ‘fut nommé par la confiance de ses concitoyens arbitre et législateur. Pour remplir cette double mission, il lui fallut de toute nécessité affaiblir les γένη dans leur action extérieure et leur constitution intime.... L’esprit même de la constitution solonienne est opposé au classement des citoyens par γένη. L’Etat se met directement en rapport avec les individus. Les groupes, il ne les détruit pas, il les ignore.... Effet indirect des lois constitutionnelles, le démembrement du γένος est le but immédiat et constant des lois civiles... cette signature de Solon, c’est l’hostilité envers les solidarités des vieux temps.’ Again, he says40 that at the beginning of the sixth century B.C. ‘At a time when all cities had equally suppressed tribal or clan responsibility (la responsabilité familiale) in common law, Athens surpassed all others by the vigour of the blows which it struck at the internal organisation and the civic action (l’action sociale) of the clans.’ How can these apparently different view-points be reconciled? Can we express the facts so that the apparent discrepancy will disappear?
We have seen that in post-Homeric times the long submerged group-system of tribal society resumed its sway. Though the wars and migrations of the period must for a time have weakened its power, yet ultimately, as Thucydides says, ‘Hellas recovered tranquillity, and began to send out colonies.’41 The new doctrine of Apollo, which regarded homicide as a ‘pollution,’ was, we think, adopted about the seventh century, which was pre-eminently the period of Greek colonisation. Henceforth the homicide was conceived as an enemy not merely of the ghosts of those whom he had slain but also of the gods of the new States which had evolved out of chaos through synoekism. But Attica, almost alone of all Greek States, was immune from the chaos of migrations and invasions and retained for the most part its original inhabitants. Therefore Attica, more than any other Greek State, required, for its political unification, a more strenuous law-making, a more violent attack on the civic action of the clan.
Yet we cannot suppose that the clans and tribes of the group-system were destroyed in Attica any more than they were in other parts of Greece. All through the historical era clans and tribes continued to exercise limited powers and jurisdictions; the old ties of kindred and of neighbourhood were maintained under the form of religious corporations long after the group-system had lost its political power. All this is merely to say that the old aristocracy of birth was replaced by plutocracy and democracy. The various stages in this transition will be made clear if we give a brief sketch of the political evolution of Attica, a sketch which is all the more necessary because of the analysis which we shall have to give, at a later stage, of blood-vengeance in Attic tragedy.
Evolution of the Attic State
We need not allow ourselves to be detained by the obscure and conflicting legends which centre round the birth of the Attic nation. Coulanges42 refers to the traditions concerning local kings of Attica before the time of Cecrops. Pausanias refers to a kind of religious amalgamation which was doubtless the concomitant of political synoekism: ‘Sacred to Athene,’ he says, ‘is all the rest’43 of Athens and similarly all Attica; although they worship different gods in different townships, none the less do they honour Athene generally. He points out that four villages at Marathon were still in his time united in a local worship of Apollo, and that legend attributed to Cecrops a federation of Attica into twelve different states.44 While Coulanges accepts the legend which attributes to Theseus the political unification of Attica, he thinks45 that Plutarch46 and Thucydides47 are in error in supposing that Theseus abolished the local prytanies and magistracies. ‘If he attempted this,’ he says, ‘he certainly did not succeed; for a long while after him we still find the local worships, the assemblies, and the kings of the tribes.’
In theory the four tribes of ancient Attic society were Ionian tribes which, in the days of oligarchic power, imposed their will upon the rest of Attica. Müller48 points out that there is a distinct change in Attic mythology when we come to the Ionian Kings, Aegeus and Theseus. But Leaf thinks it possible that the adoption of the four Ionian tribes in Attica does not represent an Ionian conquest, but was due to the fictitious self-inclusion of Attica in the Ionian race.49 Bury holds50 that ‘the statesmen who united Attica sought their method of organisation from one of those cities of Asia Minor which Athens came to look upon as her own daughters’: that the names of the four Attic tribes,51 Geleontes, Aigikoreis, Argadeis and Hopletes, were borrowed from Ionian Miletus: and that Attica was united into a single state in the period of what is known as the life-regency (1088 B.C.-753 B.C.)
The tribal continuity of Attic life is most clearly indicated in the excellent analysis of F. de Coulanges. The people of Attica, at the birth of the Attic State, were governed, he says,52 by noble clans called Eupatridae who had abolished, about 1050 B.C., the power of an hereditary monarchy. Some three hundred years later, these same noble clans limited the power of the life-regent (a member of the royal family) by insisting on an election being held every ten years. About 700 B.C. annual election was in force, and the royal family was represented by only one member in a government of nine archons elected from the Eupatrid caste. These Eupatridae, who dwelt in scattered groups in Attica,53 created a united Attic State when they formed a confederation for the purpose of defence and common worship. But the absence of sustained danger from abroad and the development of mutual rivalry and internal feuds diminished, at length, their pristine vigour.54 Non-privileged classes, herded together in towns and hamlets, saw in Eupatrid weakness their own opportunity.55 The introduction of coinage in the seventh century and the expansion of trade and commerce led to the presence, in Attic ports and cities, of a new nobility of wealthy merchants who could not56 aspire to enrolment in the exclusive Eupatrid tribes, who could not be permitted to worship at the altars of tribal gods, who were not, in fact, recognised as a functional element of the civic organism. Naturally, these merchants imported new worships; they seized on Oriental cults which, like Buddhism, excluded no caste. Conscious of the barriers which confronted them, they often had recourse to armed revolt.57 The conflict ended at length upon the appointment of a legislator who was expected to revise and to codify the laws. Dracon, the first great Athenian legislator, certainly codified the laws, or some of them at least. But being too loyal a Eupatrid, he failed to remove the grievances of plebeian nobiles. Solon, a Eupatrid by birth, had the advantage of being a merchant by occupation.58 He first attacked the large domains of the Eupatrids and their political power.59 He assailed their monopoly of judicial authority60 by setting up a timocratic, if not a plutocratic, Areopagus, as an alternative to the aristocratic Ephetae courts, and by the institution of popularly elected Heliastic juries which possessed at first, appellant, and later, universal jurisdiction in Attic law. But it was only in the time of Cleisthenes, about 510 B.C., that the four patriarchal tribes of Attica were removed from the pedestal on which they had stood so long and which was the basis of their political existence. Ten new tribes were created, on an entirely novel principle of local segregation: new hero-cults arose: new priests offered sacrifice, who were liable to annual election: and the four Ionian tribes ceased to have any political meaning.
But they did not, therefore, cease to exist.61 Obscure and hidden, they still lived on. Clan-courts still sat to decide disputes regarding property, adoption, and inheritance.62 In the time of Demosthenes63 such courts imposed fines for the embezzlement of property. Homicide, in particular, which from the eighth century onwards assumed a ‘religious,’ which is to say, a theocratic or patriarchal aspect, was in historical times ‘purged’ and in certain cases ‘judged’ by the Ephetae and the Exegetae who were chosen64 from Eupatrid families.
We shall now proceed to consider the advent in Greece of that new religious doctrine which for the first time declared the murderer to be a sinner against the gods and debarred him for ever from his country and his home.
Section II
Religious and Legal Transitions
The evidence of mythology and archaeology points so clearly to frequent and continuous intercourse between the early Greeks and their non-Aryan neighbours of Egypt and Asia Minor that up to quite recent years it was possible to maintain that early Greek civilisation was derived from African and Asiatic sources. Thus—to quote a writer easily accessible—Mahaffy65 held that to the Phoenicians and to the Egyptians is to be traced ‘the prehistoric culture of Argos, Mycenae, Orchomenus and Crete.’ There are, he thought,66 Oriental, Assyrian and Syrian influences in Mycenaean remains. Egypt, especially, was regarded as the home of wealth and culture.67 It is only in more recent years when the explorations in Crete have shown, for example, that ‘compared with the palace of Cnossus, the palaces of the Pharaohs were but hovels of painted mud,’68 that the early Aegean culture came to be regarded as derived from an indigenous Cretan civilisation, and Minoans received the honour which was previously accorded to the Phoenicians. It is now recognised that the great period of Asiatic intercourse with Greece was the post-Minoan period. The fall of the Minoan thalassocracy opened the Aegean Sea to Asiatic traders. ‘The Phoenicians,’ says Bury,69 ‘had marts here and there on coast or island, but there is no reason to think that Canaanites made homes for themselves on Greek soil.... Their ships were ever winding in and out of the Aegean isles from north to south, bearing fair naperies from Syria, fine wrought bowls and cups from the workshops of Sidonian and Cypriot silversmiths, and all manner of luxuries and ornaments: this constant commercial intercourse... is amply sufficient to account for all the influence that Phoenicia exerted upon Greece.... The briskest trade was perhaps driven with the thriving cities of Ionia, and the Phoenicians adopted the Ionian name... as the general designation of all the Greeks.’ In Ionia, Bury thinks,70 occurred that fusion of Semitic consonants with Greek vowel symbols which produced the Greek alphabet. In close contact with the Ionian Greeks were the Lydians, who were the first people to coin money (about 700 B.C.71) and who transmitted the discovery to the Greeks and to other Asiatic peoples. Needless to say, this discovery was of great commercial importance, and incidentally rendered possible an accumulation of non-landed wealth. Now Greek coinage, as Bury points out,72 ‘was marked from the beginning by religious associations, and it has been supposed that the priests of the temples had an important share in initiating the introduction of coinage. It was in the shrines of their gods that men were accustomed to store their treasures for safe-keeping.... Every coin which a Greek State issued bore upon it a reference to some deity.’
From these facts alone, apart from general considerations, it will be evident how easy and natural it was that the Greeks should also have received religious inspirations from their Asiatic neighbours.
It is very significant that the first mention, in Greek literature, of the religious purgation of homicide occurs in an epic poem, the Aethiopis, by Arctinus of Miletus,73 who lived in the last half of the eighth century (750-700 B.C.). In this poem we are told that Achilles, having slain Thersites because he had ridiculed his tears for the death of an Amazonian queen, went to Lesbos to be purified. Glotz points out that the presence of Achilles at a sacrifice before his purgation implies that the doctrine was not, at that time, fully developed or understood.
Again, it is very significant that Herodotus74 attributes to the Lydians rites of homicide-purgation which, he says, are almost the same as those which the Hellenes used. According to the historian, there came to Croesus, King of Lydia, about the year 550 B.C., ‘a man, in wretched plight, whose hands were not clean, a Phrygian by race, of royal blood.’ ‘Having reached,’ he says, ‘the house of Croesus, this man asked to have himself purified according to the customs of the place, and Croesus purified him.’ After the ceremony Croesus asked his visitor who it was that he had slain: the stranger replied that he had involuntarily slain his brother and that, in consequence, he had been expelled by his father and deprived of all his privileges. We shall see presently75 that involuntary kin-slaying could be purged abroad, in the Greek purgation-system. We cannot conclude, because Croesus made no inquiries prior to the ceremony as to the details of the deed of blood, that therefore all kinds of homicide could be purged amongst the Lydians. The very fact that the slayer requested purgation would, in the religious atmosphere of the time, have been taken as sufficient evidence that his deed was at least capable of being purged.
The conception of homicide as a pollution or religious offence is known to have existed at an early date amongst the Hebrews, and we may hazard the conjecture, though we find no express reference to the fact, that a system of purgation was practised by the Hebrews, at least for minor degrees of guilt. The penalties exacted for homicide amongst the Hebrews, as amongst the Romans, were much more severe than those which prevailed amongst the Greeks. We have seen76 that in the normal operation of homicide-purgation no religious ‘cleansing’ was valid while the civic penalty remained unpaid. In Roman law, death was the penalty prescribed for murder and for manslaughter: but for justifiable or justifiably accidental homicide77 there was no punishment, and religious expiation could immediately take place. Amongst the Hebrews, a similar penalty was exacted for murder and manslaughter. ‘Whoso sheddeth man’s blood, by man shall his blood be shed’ is the general principle78; and again: ‘He that smiteth a man so that he die79 shall surely be put to death: if a man slays presumptuously with guile, take him from my altar that he may die.’80 For accidental or justifiable slaying, however, we find that a mode of escape from the avengers of blood was provided: ‘If God delivers a man into his hands,81 I will appoint thee a place whither he shall flee82... and ye shall not take compensation for him that is fled to the City of Refuge that he should come home before the death of the high-priest. So ye shall not pollute the land wherein ye are.’83 We may assume, with some degree of probability, that in this class of homicide, some form of purgation ceremony was customary. We mention the Hebrew custom here merely to show the general trend of Asiatic thought in regard to homicide.
We may, therefore, regard as highly probable the view which connects the origin of the post-Homeric Greek notion of homicide as a ‘pollution’ with the Semites and Asiatic peoples. Glotz merely states his view of this matter without giving reasons in support of his statement.84 ‘Alors,’ he says, ‘les Grecs prendront aux Sémites les rites dramatiques de leurs cérémonies purificatoires.’ There were, however, some important differences between the original Semitic doctrine and the matured Greek adaptation of it, as will be evident from a brief explanation of the precise nature of the Greek ‘pollution’ doctrine.
The Greek Pollution Doctrine
At first, we think, there came to Greece a vague rumour of the doctrine through the medium of the Cyclic poets. Greek priesthoods in Asia had already adopted it because of their proximity to Asiatic races who had developed it. But originating, as it did, in the centralised theocracies which then existed amongst these races, the doctrine could be accepted only in a modified form by the Greek people whose predominant political institution was the city-state.
Traces of the doctrine in its early phase, prior to its formal adoption in Greece, appear in the story of Alcmaeon. Thucydides,85 in his account of the islands known as the Echinades, in western Greece, which were gradually, owing to the silting up of the river Achelous, becoming part of the mainland, mentions the following legend: ‘when Alcmaeon, son of Amphiaraus, was wandering over the earth after the murder of his mother, he was told by Apollo that here he should find a home, the oracle intimating that he would never find deliverance from his terrors until he discovered some country which was not yet in existence and not seen by the Sun at the time when he slew his mother; there he might settle, but the rest of the earth was accursed to him. He knew not what to do till at last, as the story goes, he espied the deposit of earth made by the Achelous, and he thought that a place sufficient to support life must have accumulated in the long time during which he had been wandering since his mother’s death.’ This conception of pollution is very Semitic, and reminds us of the Biblical allusion to Cain86 as ‘cursed from the face of the earth,’ but it is also to a certain extent Greek, since there was not in historical Greece any purgation for wilful matricide or, if we may trust Plato,87 for wilful kin-slaying. In the Apolline era Greek kin-slaying was punished, according to Plato,87 by death, and it was so punished in a later Israelite penal code. In the Pelasgian era, kin-slayers, condemned to perpetual exile, were often compelled to wander for years and years. Their wandering must have been almost proverbial, yet its meaning was understood. But the picture of a kin-slayer wandering till he finds an unpolluted piece of earth can only be attributed to the fanciful interpretation of a novel religious law which as yet was not fully comprehended. We have already discussed88 Miss Harrison’s views in regard to Bellerophon and the ‘plain of wandering.’ Apollodorus tells us89 that Bellerophon was purified by Proetus. Miss Harrison says90 ‘in those old days he could not be purified.’ We agree that he could not be purged in Homeric times, because the rite was unknown: if in later times he was said to have been purged, it became necessary to suppose that the crime which he committed was involuntary. But Homer says nothing of Bellerophon’s kin-slaying.91 It was probably an invention of later minds intended to explain the Homeric reference to the ‘Aleïan plain’ which was interpreted as ‘the plain of wandering,’ after the analogy of the ‘wandering’ in the legend of Alcmaeon.
We hope to show presently that this religious doctrine, which declared in effect that homicide brought down the anger of the gods upon the community which neglected to punish it, took definite shape in historical Greece under the aegis of Apollo and his priesthoods and Amphictyonies. In our view, the final form of the doctrine was a fusion or compromise between the severer Semitic conception, on the one hand, and, on the other, the tribal traditions of Greek homicide-customs, weakened and disorganised, as they were, in the Hesiodic age of chaos, but unmistakably local in their outlook, and reflecting still the attitude adopted by the relatives and attributed to the victim. The Apollo of the Greek race could not accept in its entirety the Asiatic doctrine of pollution but had to modify it at the bidding of customs which were sanctified by time. As we believe that the Draconian homicide-laws were merely an eclectic codification of the seventh-century unwritten laws of the aristocracies of birth, it would clearly anticipate our whole account of the Draconian legislation if we were to explain at this stage the detailed operation of the Apolline pollution system. We shall then give here only an outline of the Asiatic-Greek compromise which we believe to have arisen in the eighth or seventh century B.C.
In the first place wergeld was abolished, as amongst the Hebrews, for wilful murder. This was the greatest concession which the new doctrine extorted from tribalism. The new provision which declared the property of the wilful man-slayer confiscated to the State when the slayer had gone into perpetual exile we attribute to a third factor—the evolution of State power: wergeld in the strict sense was also abolished for manslaughter, but the slayer was allowed and commanded, after a period of exile, to ‘appease’ by ‘presents’ the relatives of the slain. In this we can clearly detect a concession wrung from what we call Apollinism by the tribes. It is usually held92 that in the case of manslaughter, and Glotz holds93 that even in the case of murder, ‘private settlement’ without trial was legal in historical Athens. We hope to show94 at a later stage that these opinions are incorrect, except in regard to one special and rare contingency.
Secondly, there was a religious compromise which is reflected in the ritual of purgation. In the Semitic doctrine of pollution, murder and manslaughter could only be ‘purged’ by the blood of the slayer, which meant, in practice, that the slayer could never be purged at all: but the ancient traditions of the tribes and their capacity for discerning the varying degrees of homicide-guilt led to a peculiar compromise, by which Apollo and other State gods consented to accept the sacrifice of a surrogate victim, when the atonement which the law prescribed had been paid, the actuality of the atonement being symbolised, as it were, by this Chthonian sacrifice of ‘reconciliation.’
Since Greece, unlike Israel, was a conglomeration of local civic groups, and as tribal custom had accepted exile in default of wergeld and prescribed different periods of exile according to varying degrees of guilt, therefore, when the issue was knit between the new Semitic doctrine of ‘pollution’ and the ancient tribal laws, the resultant compromise produced a new law which decreed perpetual exile for all cases of wilful homicide, including, we believe, originally, even kin-slaying. The law of historical times which condemned the kin-slayer inevitably to death was not, we have reason to believe, a product of the Asiatic-Greek compromise. Like the law which decreed the confiscation of a murderer’s property, it is, we think, to be attributed to the evolution of centralised State government. In regard to manslaughter different periods of exile were, no doubt, decreed according to the different degrees of guilt: the despotic doctrine of theocratic Asia had, in this, to respect the long traditions of tribal Greece: accidental and justifiable slaying probably required no civic atonement. Apollo was compelled to admit such slayers to immediate ‘purgation.’ In other cases, ‘purgation’ was accepted when the prescribed atonement had been made.
Our account of this compromise in the Greek doctrine of pollution is complicated by the presence of a third factor which had become more and more important as Greek States increased in size and power, and which must be indirectly attributed to the doctrine of ‘pollution,’ namely, the conception of homicide as an insult to the State gods and to the State, not merely to the Sun, or to the Delphian Apollo, or to some still more distant Orphic deity in the underworld. This conception of homicide raises it at once from the position which it held in the system of ‘private vengeance’: the murderer, like the traitor and the man stained with sacrilege, now stands forth, if not as a criminal in the modern sense, at least as a quasi-criminal, a vile being who has jeopardised by his act the prosperity and the destiny of the State. He is henceforth liable to ἄτιμία,—he must be degraded from citizenship: if he waits for the verdict which declares him a State criminal, he must die. If he flees, his property must be confiscated to the State, as was the property of all ‘degraded’ exiles. Retribution to the relatives, which is the basis of tribal wergeld, has vanished into the air, but the murderer cannot now be buried in the tomb of his fathers: he can never frequent the temples of his gods: he cannot even attend the public games of all the Greeks lest the contact of his presence should pollute his fellow citizens or the gods who no longer can tolerate his presence. But, provided he avoids certain areas and festivals, he may live without fear. A law of Dracon95 declares that to slay such an exile was murder. Thus we see how the old tribal custom which accepted exile as a complete atonement, (not, as it was amongst Achaean militarists, a mere flight from death,) was respected despite doctrinal innovations, because it had been sanctified by time.
Glotz holds96 that this immunity in foreign states of exiles who were guilty of wilful murder in their home-land was due to occasional treaties of ἀσυλία between Greek States. We shall see that such immunity was more probably derived from Greek extradition law, and such law implies international authorisation. It was precisely because such laws could be made and enforced that Greek homicides required no ‘cities of Refuge.’ Thus, the Greek pollution-doctrine bears on the face of it the stamp of a compromise between tribe and State, between local gods and international religion.
But there was a further compromise, which we must also indicate, namely, that which inevitably took place between the ghosts of the slain and the purifying gods, the καθάρσιοι θεοί. We have argued97 that the chaotic centuries which followed the Achaean domination produced a much more monstrous and bloodthirsty conception of the Erinnyes than that which existed in the Homeric age. We have suggested that the revolt of the clansmen against Apolline innovations which abolished material retribution for homicide may have rendered still more ferocious and implacable the Erinnyes of the slain. Yet when the Greek Apolline doctrine of pollution was finally accepted by Hellenic tribes and States, the Erinnyes, like the Titans, were subdued, and became so mild that they could be identified with the Semnai Theai and called Eumenides! They could live in peace again, as in Homer, with the Olympian gods whom they had learned to loathe.
They had succeeded at least in imposing many old Pelasgian traditions upon the autocrat of Delphi. In historical Greece, at least before the third century B.C.,98 the State could never take the initiative in a direct prosecution for homicide, as modern States do. It could, of course, bring a charge of Impiety against delinquent relatives of the slain99: but the initiative rested in theory with those relatives. The wish of a dying man who had been fatally wounded was expressed in a formal ‘charge’ which he gave to his relatives, and this very often determined the course of subsequent proceedings. ‘Forgiveness’ by the dying man precluded a charge of murder. If a Greek of the historical era, who had been fatally wounded, thus ‘released’ his slayer before he died, the relatives were not bound to prosecute100: they could be persuaded to refrain from prosecution by what is known as a ‘private settlement’ with the slayer and his relatives. This, of course, was not a genuine wergeld; and even if it was, we could not infer that pollution could coexist with wergeld, for ‘pollution’ did not arise, in any real sense of the word, as the Greeks interpreted it, when the dying man forgave. Now we cannot conceive such considerations as these affecting the theocratic ‘pollution’ doctrine of the Hebrews. The law which decreed by divine command that: ‘Ye shall not pollute my land wherein ye are: for blood defileth the land,’ takes little account of the wishes of the dying or of the relatives of the slain. We must, of course, distinguish ‘release’ from ‘forgiveness’ in Greek law. ‘Release’ implies the absence of any ‘charge’ by the dying man. In cases of involuntary homicide, unless the dying man commanded his relatives to prosecute, no trial or formal proceedings were necessary101: ‘private settlement’ was permitted. Whenever therefore a trial for involuntary homicide took place in historical Greece, we must assume either that the accused denied the guilt and refused ‘private’ compensation or that the dying man charged his relatives to prosecute. In this latter case the slayer was polluted and had to undergo purgation when the civic atonement had been made. Hence we may truly say that, within certain limitations, Greek ‘pollution’ depended on the will of the victim and of his relatives.
In the light of these details we can more easily explain the peculiar fact that a man who had no relatives—and it was sometimes possible that a metic, or a stranger, or a casual vagrant should have no relatives—could not be avenged if he were slain. In the Euthyphro of Plato102 we are told how a poor freeman who had killed a slave was put in chains by his employer—it was a kind of informal arrest—till the verdict of the Exegetae should be heard. The freeman died. It was not wilful murder, but there was a certain degree of guilt, a certain amount of neglect on the part of his captor, a certain ἀφυλαξία which laid the employer open to a charge of manslaughter. Euthyphro, a son of the employer, feeling that he was ‘polluted’ by the fact of living with his father, proposed to charge him before the Archon Basileus at Athens; Socrates asks Euthyphro in the dialogue if he was a relative of the slain. Euthyphro replies that he does not see what difference it makes whether one is a relative of the deceased or not; the important thing is that he is polluted unless he accuses his father. Socrates implies that such an accusation is impious. We can only regret that Plato does not tell us the sequel of this fanciful drama. We think that Plato is sophistically exposing, if not covertly sneering at, the inconsistency103 of the pollution doctrine. He objects, apparently, to the law which made prosecution the prerogative of the relatives of the deceased, a law which was derived, we think, from tribal traditions of ‘private vengeance,’ just as in other passages he objects to the legends of the gods which more primitive generations had created.104
We have said that ‘pollution’ was not confined to the murderer, but extended, as if by contagion, to all persons who harboured or protected him or neglected to punish him. Thus Plato says,105 in regard to kin-slaying: ‘The relative of deceased as far as cousins, male and female, who does not prosecute... shall take upon himself the pollution and the anger of the gods.’ In this we see an aspect of the Greek ‘pollution’ doctrine which expressed the autocratic will of Delphi and of State-gods in alliance with Delphi. But if the dying man ‘forgave’ or, in certain cases, did not solemnly ‘charge’ his relatives to prosecute, this autocratic will could be ignored. Thus, the Erinnys of a slain man had a determining effect on the obligation of prosecution and on the nature of the penalty. In the Oresteian legends as they were staged by Attic dramatists, this twofold aspect of ‘pollution’ is never quite forgotten; but there are complications in these legends which prevent us from dwelling at any length upon them here.
In the case of kin-slaying in a ‘passion,’ the influence of the ghosts’ will was especially vigorous. Plato says106 that even when the ‘involuntary’ slayer had served a term of three years’ exile, and had returned to his native land, he could never return to his family and his home, or share with his kindred in domestic rites. Thus the Erinnys of the slain kinsman refused to be controlled by a centralised autocracy at Delphi, or even by the will of native State-gods. Hence, perhaps, it is that in the dramatised versions of the Oresteia, Athene has to use ‘Persuasion’107 to induce the Furies of Clytaemnestra to become Eumenides. Hence the Furies say of Orestes108:
‘His mother’s blood upon the Earth he spilled.
Shall he in Argos dwell—his father’s home?
What phratry-altar can him e’er receive?
What common lustral water can he share?’
Hence, also, as Glotz points out,109 the preliminary plea on oath of the accuser and the accused, in homicide cases, was taken before the altar of the Erinnyes or the Semnai Theai; and the defendant who was acquitted of murder by the Areopagus, as well as the returned exile who had paid the penalty of involuntary homicide, offered sacrifice there.
The Ritual of Homicide-Purgation
In regard to the ceremonial of purgation by which the slayer, in certain circumstances, was ‘cleansed’ or purified, we have already110 pointed out what we consider to have been the origin of the rite; and we have shown how the analogies which existed between such a ceremonial and the general Chthonian sacrifices of ‘expiation,’ ‘placation,’ and ‘aversion’ caused these rites to be confused with one another in the minds of ancient and of modern writers. The ceremonial of homicide-purgation appears at first sight so simple and elementary in character that we would be inclined to assume a priori that it could have been duly performed by any ordinary person. But, in fact, we shall see, the performance became the privilege of priests or theocratic nobles. An animal, generally a pig,111 but sometimes a calf or a lamb,112 was bled to death and the warm flowing blood was poured over the hands of the slayer, passing away into the sea or into a running stream. The dead animal was then thrown into the water, or was buried, but it could not be eaten.
We may compare the Chthonian ceremony of swearing, in which the slain animal was conceived as at once symbolising and magically inducing a similar fate in case of perjury. The Roman formula is well known. Livy tells113 how a certain M. Valerius, one of the Fetiales, or Roman priests, swore on behalf of the Roman State, to the Almighty Juppiter, in a treaty with ancient Alba. ‘Audi, Iuppiter: audi, pater patrate populi Albani: audi tu, populus Albanus... si prior defexit publico consilio, dolo malo, tu illo die, Iuppiter, populum Romanum sic ferito ut ego hunc porcum hic hodie feriam: tantoque magis ferito quanto magis potes pollesque.’ Now, all such ceremonies, simple as they may appear, were hedged round with the most minute regulations as to formulae and procedure, and were thus removed from the competence of ordinary individuals.
Moreover, each locality developed differences of usage which, however slight, could never be ignored. Herodotus,114 speaking of homicide purgation, implies that all Greeks used the same rites. But that there were minor local variations may be inferred, perhaps, from a peculiar ceremony in the Oedipus Coloneus of Sophocles. Oedipus, having gone as an exile from Thebes to Attica because he had slain his father, is told115 that he cannot hold converse with the Athenians while he is still uncleansed. The ban is removed when he is admitted to ‘purgation,’ but for the due performance of the rite he is entirely dependent on local direction. We shall give the relevant dialogue between Oedipus and the Chorus116:
Oed. Kind sir,
Be my good guide. I will do all thou biddest.
Ch. Propitiate these holy powers, whose grove
Received thee when first treading this their ground.
Oed. What are the appointed forms? Advise me, sirs.
Ch. First see to it that from some perennial fount
Clean hands provide a pure drink-offering.
Oed. And when I have gotten this unpolluted draught?
Ch. You will find bowls, formed by a skilful hand,
Whose brims and handles you must duly wreathe.
Oed. With leaves or flocks of wool, or in what way?
Ch. With tender wool ta’en from a young ewe-lamb.
Oed. Well, and what follows to complete the rite?
Ch. Next, make libation toward the earliest dawn....
Oed. With what contents
Must this117 be filled? Instruct me.
Ch. Not with wine,
But water and the treasure of the bee.
Oed. And when leaf-shadowed Earth has drunk of this,
What follows?
Ch. Thou shalt lay upon her then
From both thy hands a row of olive twigs
Counting thrice nine in all—and add this prayer—
Oed. That is the chief thing—that I long to hear.
It may be said that we have not here a genuine instance of homicide-purgation. There is no animal sacrifice, no ‘cleansing’ by a bath of blood. Water and honey were regular offerings to the dead, and the express prohibition of wine-libations reminds us very forcibly of the sacrifice to the Erinnyes made by Clytaemnestra in the Eumenides of Aeschylus.118 Has Sophocles in mind, then, a local rite of placation to the Erinnys of Oedipus at Colonus, which he interprets as a commemoration of purgation rites? We have seen how easily such rites may be confused. Or are we to assume that the purgation rite for involuntary or extenuated homicide was different from the rites by which a wilful murderer could be purged ‘abroad’ or from those by which a justifiable slayer was purged at home? Was the sacrifice which was offered to the Erinnyes or the Semnai Theai119 by involuntary slayers after their return from exile, and by accused persons who were acquitted by the Areopagus, a regular purgation rite? These questions we find it difficult to answer either in the affirmative or in the negative. Plato’s references120 to greater and lesser ‘cleansings’ according to different degrees of guilt imply that the average Greek did not understand the exact nature or purpose of ‘purgation’ and that the secrets of this magic art of reconciliation were the exclusive privilege of theocratic nobles whose interest it was to obscure rather than to clarify the details of the system. The passage we have quoted from the Oedipus Coloneus possibly points to variations in the ‘purgation’ ritual according to degrees of guilt—variations which suggest moreover the ambition and the power of local deities and priesthoods to retain their distinctive peculiarities in the execution of a central Apolline doctrine.121
In the Iphigenia Taurica of Euripides122 we find a mock purgation ceremony arranged by Iphigeneia to save the lives of Orestes and of Pylades. The image of Artemis is said (it was a fiction invented by a loving sister) to have turned in its seat and to have closed its eyes when the blood-stained Argive cousins entered the temple! Iphigeneia proposes to ‘cleanse’ the pollution by the blood of young lambs shed in solitude by the sea and such other things as she has ordered as purifications. King Thoas, not being himself appealed to, leaves the whole question of purgation entirely in the hands of the priestess of Artemis.
From the legend that Bellerophon was cleansed by his host Proetus,123 the king of Tiryns, we might be inclined to argue that the purgation rites for certain forms of kin-slaying were performed by private non-sacerdotal individuals. But every king was a High Priest in primitive religion; and, further, we have already seen that Proetus could not have performed the post-Homeric ceremony which is attributed to him. It is however possible that Croesus personally ‘purged’ the Phrygian homicide mentioned by Herodotus.124
It is probable that in Greece the ‘cleansers’ of homicide-guilt were always ‘priests’ of some kind. Epimenides of Crete purged the city of Athens on a famous occasion, yet not from murder but rather from sacrilege125; moreover, Müller points out126 that he was a native of Phaestus in Crete where there was a very ancient cult of Apollo; hence Epimenides was more than probably a member of an Apolline sacerdotal guild. Müller is, however, we think mistaken in regarding purgation for homicide as the exclusive privilege of Apolline priests. The Euripidean reference to purgation by a priestess of Artemis which we have just cited,127 Athene’s interpretation128 of the supplication of Orestes as a supplication for purgation, in the Eumenides of Aeschylus, and many passages in the Laws of Plato,129 reveal the error of this opinion.
The purgation of Orestes by Apollo is described by Aeschylus in the Eumenides. It is no priest or priestess of Olympian or Chthonian gods, but Apollo himself,130 the chief of the καθάρσιοι θεοί, who performs the rite. We cannot interpret the ceremony as the purgation of a wilful matricide ‘abroad,’ as we think that such purgation was impossible, at least in historical times.131 It is the ‘purging’ rather of a deed which is either justified or extenuated by Apollo’s express command, a ‘purging’ which would normally take place in the slayer’s home-land but which is here attributed to a divine Delphian purifier either because Apollo was the patron of the Greek ‘purgation’ system or because the deed was such that no one could have cleansed it save the god who had commanded it, or because a Phocian legend made Phocis, not Athens, the place to which Orestes fled after the slaying of his mother. Orestes tells132 Athene that he is not a suppliant for purgation at Athens, because he has been already ‘purged.’ We may infer from this that a homicide-exile had not to be ‘purged’ more than once in his changes of residence abroad, but we think it probable that such ‘extern’ purgation did not dispense with the need for ‘domestic’ purgation if the exile was ever permitted to return to his home.133 Orestes says134: ‘There is a law that the shedder of blood is debarred from human intercourse until at the hands of a man who purifies from bloodshed the blood of a young animal has been poured upon him. Long ago have I been thus made clean by others who live elsewhere, by animal victims beside running water.’
From this passage, and from the reference which we have cited from Euripides’ Iphigenia Taurica, as well as from more general considerations we conclude that homicide-purgation normally included the shedding of animal blood when some element of guilt was admitted. It is possible, therefore, that the rite described by Sophocles, in the Oedipus Coloneus,135 was not conceived as a genuine purgation-rite but rather as an exceptional local procedure which was intended to supplement a presumed anterior purgation.136 That Attica was noteworthy for its scruples regarding ‘pollution’ may be inferred from the remarks of the Corinthian Chorus in the Medea of Euripides.137
We are entirely on the side of Müller138 and Philippi139 in the view that purgation, in historical Greece, was applied to the authors of justifiable bloodshed.140 This we may regard as a further confirmation of our opinion that homicide-purgation was not a placation of ghosts or an expiation offered to gods, but a solemn and sacred symbol of reconciliation between the slayer and his native gods.141
Our hypothesis of the origin of the Greek doctrine of homicide as a pollution will receive still further confirmation when we describe in more detail the historical Greek system of penalties for bloodshed and the conceptions of those penalties which are found in Attic tragedy. We will now give the reasons which have led us to associate the Greek ‘pollution’ doctrine with the Delphian Apollo and his Amphictyonic League, after which we shall be in a position to discuss142 the influence of the ‘pollution’ doctrine on ‘wergeld’ and the legality of ‘private settlement.’ The following account is intended as a supplement to Müller’s analysis, which errs only in attributing purgation-rites exclusively to Apollo and his priests.
Apollo and Pollution
In Homer, Apollo has already established at Pytho a temple of many treasures.143 The reference to ‘sacred Crisa’ side by side with ‘rocky Pytho’144 suggests, if the Greeks were right in their interpretation of ‘Crisa’ as ‘the Cretan land,’ that the region was already revered in the days of the Minoan thalassocracy. Aeschylus in the Eumenides145 reproduces the Greek tradition regarding oracle-deities at Delphi, before the advent of Apollo. The Delphian priestess accords priority to Ge, the Earth-goddess, ‘the first of prophets,’ and then she prays to Themis, as the second deity who gave oracles there. This legend probably originated in a joint worship of Ge and of Themis under the forms of the Mother and the Maid; for, just as the cult of Demeter and Kore represented the joint worship of the Earth and its produce, so the cult of Ge and Themis represented the worship of the Earth and of the deified uniformity of the Earth’s fertility. Next the priestess prays to Phoebe, another daughter of Earth, who in turn transmitted the oracle to her son, Phoebus Apollo. It was supposed that the temple which is mentioned by Homer was the fourth146 temple which had been built on that site. This temple was destroyed in 548 B.C., according to Pausanias.147 Hence it is much less probable that the oracular shrine had been handed down by continuous succession as an inheritance within a ‘divine family’ than that it was repeatedly destroyed and desecrated by successive invaders. The destruction of Crisa in 585 B.C. by the Amphictyonic League furnishes an historical illustration of its chequered career in prehistoric ages. The octennial festival known as the Stepteria,148 which commemorated the conquest of the Python by Apollo, had probably an historical foundation. For the Python, a large snake, was worshipped as a symbol of the Earth’s fertility: it was therefore associated with Ge and Themis, who ‘handed down’ the oracle according to legend. The famous Omphalos at Delphi, of which the origin and significance were so mysterious to the Greeks, was really the tombstone of the Python. But Earth, though buried, still lived in the tomb! It was from a cavern of Earth that the Pythian priestess received the vapours which produced her ‘anaesthetic revelation.’149 In the Apolline shrine was the Hestia, or sacred Hearth, derived from pre-Olympian ancestor worship and necromantic art. Before the pilgrim entered the shrine of the Olympian oracle, he had to perform a Chthonian sacrifice, and offer a πέλανος, a mixture of milk, wine and honey, which was a characteristic offering at the tombs of the dead.150 Around the tomb of the Python stood Gorgon-images,151 which were probably suggested by ‘image-magic’ as a placation of the wrath of the Erinnyes, who sought the life of the slayer of the Python. It was from these images, we think, that Aeschylus derived his conception of the Erinnyes, and the famous scene152 which depicts them as sleeping a loathsome sleep in the temple of Apollo, whom they hate but also fear. We find in Aelian and Plutarch the legend153 that Apollo, in the days of his conquest of Delphi, fled to Tempe, after slaying the Python, to be purified from the pollution. The Stepteria festival was believed to commemorate his flight! In this legend, however, as in that in which Zeus purifies Ixion,154 we see the effect of aetiological myth-making and the operation of a principle of primitive religion whereby man makes the gods in his own image and attributes to them the emotions and the observances of his own day.
As we cannot regard Apollo, notwithstanding Müller’s155 reasoning, as the special product of Dorian religion, so we cannot attribute his exaltation in post-Homeric days exclusively to the Dorian invasion. The Achaeans worshipped Apollo as a prophet-god and as a powerful ally in war, but their hegemony in Greece was based on military control rather than on theocratic manipulation. The Delphians are not mentioned in Homer. They were a Dorian dominant caste which conquered the Phocian masters of the ‘Homeric’ temple at Pytho,156 about 1000 B.C. Undoubtedly they could not have retained the fruits of their conquest for any period of time, if they had not been supported by the power of the Dorian invaders of Southern Greece. Thus, in 448 B.C., when the Phocians had reoccupied Delphi, it was the Dorian Spartans who sent an army to restore it to the Delphians.157 Yet the Athenians, who were then supreme in Central Greece, restored it to the Phocians for a time. But, about 585 B.C., when anti-Dorism was at its height in Greece, it was to a northern league of Greek States, in which the Dorians were subordinate, that Delphi looked for help against the Phocians of Crisa.158 The fact that Cleisthenes of Sicyon, an anti-Dorian, championed the Delphians in this campaign, proves that their Dorian nationality was already subordinated to the prestige which they had won as the High Priests of Greek prophetic religion: and the loan of fifteen talents which a Spartan king gave to the Phocian general who had once more seized Delphi in 356 B.C. shows how Dorism had lost its primal solidarity.159
We think, then, that the prestige of the Delphian Apollo, though originating in the Dorian migration, was due to a combination of two forces: (1) the widespread cult of Apollo in Greece and in Asia Minor: and (2) the skill by which the Delphians (who controlled the oracular decrees) impressed the Greeks and foreign peoples with the unrivalled divinity of their local shrine in matters of prophecy and healing-magic; and organised under their banner the local priesthoods of Greece by annual processions and pilgrimages, by the construction of sacred roads, and the establishment of religious Amphictyonies.160 While other ‘sacerdotal’ nobles in Greece worshipped a number of deities, Olympian and Chthonian, the Delphians seem to have concentrated on Apollo. They were definitely theocratic—being a select caste of nobles, whose High Priests were elected by lot.161 They formed a criminal court which exacted the death penalty for sacrilege. It follows that when homicide became a religious offence, these judges would not only have decided all cases within their territory,162 distinguished between different degrees of guilt, and pronounced upon the possibility of purgation, but they would also have used the prestige of the oracle to make their decisions imitated elsewhere. Thus, the Attic Eupatridae, who worshipped Apollo Patroos, and their judges, the Ephetae, who swore by him before their trials,163 would naturally have adopted the decisions of the central Apolline oracle. Moreover, the annual processions of representatives (θεωροί) of Greek states to Delphi, the Pythian Games, a festival in which all Greeks participated, and the formation of religious international leagues or Amphictyonies made obedience to Apolline oracles almost a matter of obligation.
The great Thessalian Amphictyony of Demeter at Anthela, a very ancient association, including Thessalians, Locrians, Phocians, Boeotians, Athenians, Dorian and minor states, came in the sixth century164 to meet also at Delphi, and the temple was placed under the control of international Hieromnemones who met twice a year and promulgated laws to be obeyed by all its members, called Amphictyonic laws. It is significant that, in historical Athens, murder exiles were prohibited from Amphictyonic festivals.165 This law was clearly of Amphictyonic origin.166
We have quoted Thucydides’167 account of the command which was issued by the oracle of Apollo to Alcmaeon, the matricide, directing him to travel to the Echinades Islands. This legend bears, on the face of it, an antique stamp, and the function which is here ascribed to the Delphic oracle is a first-rate piece of evidence for the connexion of Apollo with the historical doctrine of ‘pollution.’
We have quoted Herodotus’168 account of the story concerning Phrixus and Athamas, in which a Delphic oracle was said to have commanded the Thessalians to ‘purge’ their country by slaying Athamas in sacrifice. This legend we regard as ‘unhistorical’ and pseudo-aetiological, but the rôle which it assigns to Delphi may be cited in support of our present hypothesis.
In historical Attica, the rites of homicide-purgation were performed by three persons called Exegetae or Interpreters who, Suidas169 assures us, were appointed or controlled by Delphi (Πυθόχρηστοι). Plato,170 speaking of the appointment of Sacred Interpreters, says: ‘It is right to bring from Delphi the laws relating to all “divine matters” and to follow these laws, having appointed interpreters for them.’ Speaking of their appointment he says that from the names of candidates which stood first on the list after election, nine should be sent to Delphi, and ‘the god’ was to select three of these names. The homicide laws of Dracon, as we shall see later, were not a complete code of homicide-law. Many details were omitted, and these details, we believe, were worked out in the unwritten code of the Ephetae and the Exegetae. In the Euthyphro171 of Plato, a poor freeman who had killed a slave was put in chains and cast into a trench on the wayside to await the decision of the Exegetae concerning his guilt! The man died from hunger and neglect before the decision arrived, and the question of avenging his death forms one of the problems of the dialogue.
Coulanges points out172 that the Spartans regarded, not Lycurgus, but Apollo, as the author of their laws. These laws were Πυθόχρηστοι. If they operated, concerning homicide, in a comparatively severe manner, this was because the Spartan military system absorbed without much modification the autocratic tendencies of Delphic law, but we must not attach too much importance to a single statement of Xenophon’s which can perhaps be otherwise explained.173
Solon, the Athenian legislator, abolished all the laws of Dracon except those which related to homicide.174 These particular laws were themselves an anomaly in the Draconian code. Plutarch says that the laws of Dracon were said to have been written with blood, not with ink.175 Death was the penalty for minor thefts, yet the wilful murderer was accorded the option of exile, and the involuntary slayer, the further option of ‘appeasing’ the relatives of the slain! The life of a murderer in exile was ‘protected’ by the decree of a State whose jurisdiction ceased at its boundaries! We believe that the Draconian homicide-laws are an eclectic codification of existing traditions and that these traditions were a compromise between tribal customs and the seventh-century Apolline doctrine of ‘pollution.’ Coulanges says176 that Solon did not change the murder laws of Dracon, because they were ‘divine,’ and to disobey or tamper with such laws was regarded as sacrilegious. In our view Apollo and the Delphic oracle constituted one of the sources, and clan-traditions another, from which sprang the laws which Dracon codified.
Plato,177 speaking of the penalties for wilful kin-slaying, refers to a myth or legend ‘clearly told by priests of old’ to the effect that Justice, the avenger of kindred bloodshed, has ordained that the perpetrator of such an act shall suffer the same doom as he has himself inflicted.178 We have seen179 that in the clan-system, kin-slaying was normally punished by perpetual exile, but not by death. We do not agree with Caillemer180 that the fate of such exiles was more pitiable than that of ordinary homicide exiles, but we support the following opinion of his in regard to the attitude of the kindred. ‘Ils hésitent,’ he says, ‘souvent à verser le sang de leur parent: ils se bornent au bannissement du coupable.’ In Plato,181 the penalty for kin-slaying is inexorably death. It was, we believe, the pollution doctrine which indirectly produced this change, through the abolition of ‘private vengeance.’182 It could not have directly produced it, as is clear from the fact that amongst the Israelites, who still retained the avenger of blood, Cain, the murderer of his brother, was punished only by exile; but when, as in Greece, the pollution-doctrine caused the State to interfere in the trial of homicide and in the execution of its penalties, State judges came to execute a penalty which the relatives of the slain would never have inflicted upon a kinsman in the days of ‘private vengeance.’ We shall discuss more fully, later,183 the problems concerning parricide in Attic law. The fact that parricide was not expressly mentioned in Dracon’s laws does not prove that such a crime was not punished by State officials in historical times. Thus the myth which is attributed by Plato to ‘priests of old’ may be regarded as another proof of the ‘divine,’ which is to say, the Apolline inspiration of historical Greek homicide law.
Again,184 in regard to suicide, Plato says that it is necessary for the relatives of the deceased to inquire of the ‘Interpreters’ as to the proper methods of purification and of burial.
But the most decisive argument to be derived from Plato as to the connexion of Apollo with purgation and with Greek homicide law can be found in the scholium to a passage in the Laws, a scholium which incidentally supplies a proof of the historicity of Plato’s murder laws. The passage enunciates different cases of justifiable homicide, or rather justifiably accidental homicide—the essence of such discrimination lies in the fact that certain kinds of accidental slaying were foreseen and provided for, in advance, whether by custom, or by public opinion, or by written codes—and the cases which are here enunciated are identical with those of the Draconian law regarding justifiable bloodshed.185 We cite only a section of the passage,186 which is sufficient for our present purpose. ‘If any person unintentionally slays a fellow-citizen (φίλος) in a “contest” or at the public games... or during war, or in military exercises... in imitation of warfare... let him be purified according to the law brought from Delphi about such matters and be immune from punishment (καθαρός).’ The scholiast gives the Delphic law, as follows.187 ‘The law or oracle brought from Delphi regarding a man who kills his friend (i.e. fellow-citizen, as distinct from public enemy) involuntarily:—“Thou hast slain thy comrade (ἑταῖρον) while intending to defend him (ἀμύνων)—his blood doth not pollute thee: thou art purer than thou wast before: but thou, man, who standing near a comrade being killed hast not defended him—thou hast gone not pure away.”’ That such important cases of justifiably accidental homicide should be provided for by Delphic legislation is a most noteworthy fact. Such cases are mentioned in Dracon’s laws, and we presume that they found a place in other Greek written codes. The reference to ‘public games’ suggests unmistakably an international code of laws. Here, then, we find Plato, a member of that Attic State which prided itself on the early foundation188 of the Delphinium court, for the trial of justifiable homicide, in the time of its first Ionian Kings, advising a conformity to Delphic legislation in homicides of this kind! This scholium, if properly weighed and considered, would in itself be almost sufficient to demonstrate our theory of the Delphic origin of historical Greek homicide-laws, and of the universal similarity of these laws. We cite it here, however, as a mere link in a chain of evidence which is still very far from completion.
We have already referred189 to the exclusion of homicide-exiles from Amphictyonic festivals in Greece, and we have maintained that such a law probably originated in some Amphictyonic league such as that of Apollo at Delphi. The same reasoning applies to the law quoted by Demosthenes190 as a law of Dracon, which protected the lives of homicide exiles abroad. The law reads: ‘If anyone shall slay a murderer or cause his death while he abstains from market-places on the State boundaries and from (public) games and Amphictyonic festivals, such a person shall be liable to the same penalties as if he had killed an Athenian citizen.’ We have already191 suggested the origin of such a law. It was, we think, due to the influence of tribal custom in conflict with the new doctrine of ‘pollution,’ in the seventh century B.C. Demosthenes does not understand correctly the origin of the law, though he is reasonably successful in explaining the law.192 ‘What,’ he says, ‘was the legislator’s object? (He thought) that if we slay people who have fled to other countries, others will slay those who have fled to us: if this happens, the only refuge left for the unfortunate wretches will be abolished... also he strove to prevent an indefinite series in the avenging of (such) crimes.... He considered that if a man who is tried for murder, and condemned, once escapes securely, though he ought (also) to be expelled from the native State of the victim, it is not righteous to kill him in every place.’ Demosthenes forgets that it was quite possible for ancient Greek States to make an international compact such as appears to operate between States of the modern world, whereby all murderers who fled abroad would be extradited—not slain where they had taken refuge, but handed over to the State of the ‘victim.’ We shall see presently193 how the Greeks did evolve a system of extradition of a special kind. All the objects which Demosthenes attributes to the legislator are the creations of his own rhetorical mind. Why should he expect pity for ‘unfortunate wretches’ in a legislator who decreed that, if these wretches remained at home until the verdict of the court was given, they would inexorably be put to death? Why should a murderer expect pity from the relatives of the slain who were polluted by his presence? No, such a law must have originated in a central international Amphictyony or oracular authority which, in its legislation, had to respect the traditions of tribal village communities and of tribal aristocratic States, traditions which had come down from distant ages, and could not be suppressed without a struggle. Tradition held that ‘exile’ saved the murderer’s life, and it was not felt that such a penalty was not a sufficient deterrent. New social conditions, new religious doctrines may have changed men’s conceptions of the deterrent power of exile, but they had, nevertheless, to respect the old tradition. The homicide laws of historical Greece are, we believe,194 a compromise between central autocratic deterrence and tribal ‘private vengeance.’
In the last clause of the Demosthenic passage which we have cited there is a reference to the righteousness of slaying a murderer if he did not abstain from the ‘land’ of the victim where that ‘land’ or State was different from his own. We fail to understand how such a law could have existed, or could have effectively operated, without an international compact expressly made or tacitly adopted through the mouthpiece of an Amphictyonic oracle. We cannot accept Glotz’s theory195 that the immunity of homicide exiles abroad originated in separate treaties of Refuge or ἀσυλία. The law is much too wide and universal to permit of such an explanation. Thus, for instance, if an Athenian slew a Theban at Athens or at Thebes, the murderer was bound, after conviction, to abstain from Athens and Thebes for the rest of his life. No single Greek state could have produced such a law. Such eventualities would inevitably require an international compact or an Amphictyonic sanction.
Plato confirms the existence of these laws. Speaking of involuntary homicide, he says196: ‘It is necessary that the slayer should withdraw from the (country of the) slain and evacuate his own native land for a year: if the deceased is a stranger, let the homicide be debarred from the stranger’s “land” for the same period.’ Speaking of wilful murderers, he says197: ‘If he goes abroad without challenging a verdict (μὴ θέλησας κρίσιν ὑποσχεῖν), let him suffer perpetual exile: but if any such person sets foot upon the “land” of the slain, let whoever first meets him, whether relative (of slain) or citizen, slay him with impunity, or... hand him to the magistrates... to put him to death.’
So far we have assumed that only two States were involved in the homicide. But let us suppose that an Athenian slew a Theban at Argos. It would seem that the Athenian slayer, if he elected to become an exile rather than to die, was debarred from three places or rather three States, namely, Athens, Thebes and Argos. Plato, speaking of involuntary homicide between strangers, metics, and citizens, says198: ‘If a stranger involuntarily kills a stranger in the city, let anyone who wishes prosecute him in accordance with the same laws: if the slayer is a metic, let him go into exile for a year: if he is a complete foreigner, let him, if he shall have killed a stranger or a metic or a citizen, be banished for his whole life from the country which has power over these laws,199 and if he returns contrary to the law let the guardians of the laws punish him with death.’ The city which has ‘authority or power in regard to these laws’ must be, in this case, the city in which the deed took place. Thus, a person guilty of involuntary homicide could in certain circumstances be debarred for ever from the place in which the deed occurred, and for at least a year from the land of the victim and also from his native land. Who could have enacted such laws except an international authority?
The operation of such an authority is also revealed in the laws regarding ἀνδροληψία, or the seizure of hostages, when a murderer was not tried or punished by a ‘foreign’ State. A law which is attributed to Dracon, but which clearly must have had its origin in some national or central Greek authority of pre-Draconian days, reads as follows200: ‘If anyone dies a violent death, his relations shall be entitled to take hostages on his behalf, until (the people concerned) either challenge a verdict of murder at a trial (δίκας τοῦ φόνου ὑπόσχωσιν) or extradite the slayers: and the taking of hostages shall extend to three persons but not more.’ The meaning of the law may be thus illustrated: if an Athenian slew a Theban at Argos, and if the Argives ignored the deed, and no one prosecuted the slayer, the relatives of the Theban could come to Argos and seize the first three men whom they met, and hold them as hostages till the Argives either tried the slayer or handed him up to the Thebans. We have taken an extreme case, but it is such a case which Demosthenes has in mind when he comments201 on the law. In historical Greece, the duty of prosecution was normally limited to the relatives of the slain. The slaying of strangers was therefore likely to pass without prosecution. But this right of ἀνδροληψία was an important corrective of the laxity of this system. Relatives, living at a distance, ignorant of the actual slayer, might be regarded as impotent since they knew not whom to accuse. But the seizure of hostages would speed up the revelation of the criminal!
We may distinguish three different cases of ἀνδροληψία. (a) If an Athenian slew a Theban at Thebes, that is, if a stranger slew a citizen, then the relatives of the slain who were on the spot could ascertain easily enough the identity of the slayer and could put him on trial. If after conviction he fled to his native State, that State was bound to put him to death. If he remained after trial in the State of the slain, which, in this case, was also the State in which the deed took place, he was also put to death. But if he fled before trial to his own State, and if his fellow-citizens did not try him and punish him, or arrest and surrender him, the relatives of the slain could legally seize as hostages three of his fellow-citizens. (b) If an Athenian slew a Theban at Athens, that is, if a citizen slew a stranger, then the relatives of the slain, being aliens, had the right to prosecute through a προστάτης; but if the slayer was not tried or surrendered, seizure of hostages followed, for such seizure was the only means by which this result could be secured, and ultimately the slayer was debarred both from Athens and from Thebes. (c) If an Athenian slew a Theban at Argos, and if the slayer remained at Argos, unpunished, or if he fled to Athens and enjoyed immunity there, the relatives of the slain Theban were entitled to seize three Argives or three Athenians, as the case might be, in order to compel his surrender. The city which harboured him had either to put him on trial or to give him up to the relatives of the slain. We may infer from Plato that, if he were convicted of manslaughter at Argos, his punishment would have been more severe than if he were convicted at Athens of slaying an Athenian in Athens! But we presume that he could have elected to stand his trial at Athens, if the Theban relatives agreed to accept the verdict of an Athenian court.
The wording of the Draconian extradition law is vague and incomplete. The emergencies which it does not expressly indicate were no doubt provided for by an Apolline Amphictyonic code, which was either unwritten or, if committed to writing, was kept secret, or if promulgated, has left no trace of itself in inscriptions or in literature. But we fail to see how even the Draconian law could have ever originated in any one State, or in the mind of a single legislator. We believe that it was, on the contrary, of international or Amphictyonic origin. We have suggested, moreover,202 that the homicide penalties of historical Greece were the result of a compromise between the religion of Apollo and the traditions of local State-gods and of the Erinnyes who represented the wrath of the slain and the desire of the relatives for retribution. Does not this theory help to explain and does it not therefore derive support from the fact that the punishment of homicide was most severe and the duty of prosecution most widely diffused in the case of homicide committed in a State in which both slayer and slain were legally ‘strangers’?
Glotz,203 who sees in the protection of a murderer’s life ‘abroad’ (which means, as we now see, anywhere outside the one, two, or three States which might be involved in the case) the operation of treaties of ἀσυλία or Refuge between individual States, explains the extradition law regarding the seizure of hostages as an ancient tradition of the clans. Indicating the contrast which exists between ancient and modern extradition, he observes204: ‘En Grèce, l’extradition a de bonne heure figuré dans le droit des gens. Mais elle n’était pas du tout à l’origine ce qu’elle est devenue. Les peuples civilisés des temps modernes ont pour principe de livrer des étrangers présumés coupables de crimes commis en pays étranger, mais non pas leurs nationaux, même pour crimes commis sur terre étrangère. Les anciens se faisaient un point d’honneur de ne pas abandonner le malheureux qui s’était enfui sur leur sol et confié en leur protection. L’hôte est toujours sacré: le foyer d’une cité est un asile inviolable... c’est l’extradition telle qu’ont pratiquée longtemps les Aryens, ut populus religione solvatur.’ It was, according to this view, only a sense of honour, a fear of violating the sacred rights of hospitality, which gave to Greek extradition law its peculiar characteristics. But criminals cannot claim any right of hospitality, in the ordinary sense. Moreover, Glotz forgets that a Greek State had to expel or deliver up a stranger if the deed of blood was committed in its territory. It also had to give up its ‘nationals’ if these ‘nationals’ had slain foreigners at home or abroad. Glotz draws too fine, too neat a contrast between ancient and modern extradition. He does not explain the origin of the ancient system. To say that it existed in early clan-law but that it developed later into something quite different is not an explanation of it. Clan-extradition arose, we believe, as a solvent of war between the clans concerned. The tribal court or the city court may possibly have acted in Pelasgian times as a medium for the operation of this solvent. But the historical system of extradition, with all its minute differentiations and variations, bears, we think, the stamp of Amphictyonic legislation in the age of aristocratic rule in Greece, or in what we may call the Apolline era. It was only when homicide became an offence against an international god at Delphi, that is, in the seventh century B.C., that such legislation came to be applied to this kind of ‘crime.’ This is our explanation of the origin of the law. It was an international compact issued in the form of an oracle.
As an illustration of the interference of oracles in international disputes we will cite one or two passages from Herodotus. At the battle of Thermopylae in 480 B.C. Leonidas, the famous king and commander of the Spartan band, was slain, and Xerxes, the Persian king, mutilated the corpse by decapitation and crucifixion.205 This act is regarded by Herodotus as a barbarous violation of the customs of war, and is attributed by him to the rage and anger of Xerxes at the time. The Spartans seem to have been able to present the act afterwards as a case for damages, and they secured the support of the Delphic oracle. When the Persians had failed in their expedition against Greece, and Xerxes was returning to the Hellespont, ‘an oracle came from Delphi to the Lacedaemonians bidding them ask satisfaction from Xerxes for the death of Leonidas and accept that which should be given by him.’206 Xerxes ridiculed the suggestion at first, but later he referred the herald to Mardonius, who would, he said, pay satisfaction. At the battle of Plataea Mardonius was slain, and then, says Herodotus,207 ‘the satisfaction for the death of Leonidas was paid by Mardonius according to the oracle given to the Spartans.’ Again, we are told208 that after the Persian conquest of Lydia, Cyrus charged Mazares to bring to him alive a certain Pactyas, a leading anti-Persian rebel. Pactyas fled to Kyme, and when messengers came from Cyrus demanding his ‘extradition,’ ‘the Kymeans resolved to consult the deity at Branchidai as to the course which they should follow.... For there was there an oracle established of olden time, which all the Ionians and Aeolians used to consult’: and ‘when they thus inquired, the answer was given them that they should deliver up Pactyas to the Persians.’ Herodotus says that the Kymeans did not give up Pactyas, as they suspected the oracle of political designs. Later, the oracular shrine informed them that they were bidden to deliver up Pactyas only in order that they should be punished by the gods for contemplating the violation of a suppliant’s rights! This does not imply, as Glotz209 supposes, that such rights belonged to murderers, for Pactyas was not a murderer. We cite the passage here merely to illustrate the custom of consulting oracles in ‘extradition’ disputes.
The theory which connects Apollo with the doctrine of homicide as a ‘pollution’ finds further confirmation in many Greek legends. The story of the purgation of Ixion by Zeus, which is first referred to by Pindar210 and by Aeschylus,211 is, we think, an instance of ‘reconstruction,’ or ‘retrojection,’ on the part of legend-makers who were less concerned with the matter of consistency in the character of Zeus than with the maintenance of his exalted rôle in the Olympian religion of post-Homeric days, which tended to extol Apollo the Son over Zeus the Father. Sidgwick’s view212 that this legend originated in an attempt to derive the name Ixion from the root ἴκ as found in the words ἱκέτης and ἱκετεύειν (which refer to suppliant-rights) seems to us very probable. Pindar has perhaps been misinterpreted by Verrall213 in the translation of ἐμφύλιον αἷμα as kindred-murder. We have seen214 that the word ἔμφυλος sometimes carries this meaning in Homer. But in the Pindaric narrative it was his father-in-law whom Ixion slew, and fathers-in-law are not, as a rule, akin in blood to their sons-in-law, though they may belong to the same tribe (φυλή). Pindar asserts that the act of Ixion was malicious: but we have said215 that for malicious kin-slaying purgation was not possible: ‘Of a kindred blood defiled,’ says Plato,216 ‘there is no other cleansing... before the life that has sinned shall pay kin blood for kin blood.’ Hence, it is necessary to suppose that Ixion was not akin to his victim. The legend of the purgation of Ixion is open to suspicion on the further ground that Ixion is said217 to have been the first who ‘supplicated’ for purgation, and is said to have been purged by Zeus. Now Apollo, not Zeus, was the pioneer amongst the Purifying gods (καθάρσιοι θεοί). It was Apollo who purified Orestes, in the legend which Aeschylus follows in the Eumenides.218 ‘Mine was the house,’ says Apollo, ‘and mine the hearth which received this suppliant, and I am the purger of his blood-guilt.’
We shall see, later,219 what a difficult problem the Homeric saga of Orestes presented to the legend-makers of the ‘Apolline’ era (750 B.C. onwards). There was only one means by which the Homeric story could be retained without assuming an atrocious indifference to kin-slaying on the part of the Homeric Greeks: namely, by representing the act of Orestes as in some way justified. But the Apolline code, if we may regard Plato as a worthy exponent of it, did not admit a plea of justification for the slaying of a parent in any circumstances. ‘In what other way (than by death),’ says Plato, ‘would it be right to punish one whom no law will permit, even in self-defence and in danger of his life, to slay his father or mother... and whom (the legislator) will bid to suffer anything rather than perpetrate such a deed?’220 We are convinced that there was one thing, and one thing only, which would have been accepted by Plato as a justification for such an act, namely, the express command of Apollo himself. Apollo was the reputed founder of the Attic Court Delphinium; he was regarded as the initiator of the distinction between just and unjust slaying221: he appointed and controlled the Exegetae or the Sacred Interpreters of the laws of ‘purgation’222; surely his command, impossible to disobey, would have been admitted as a justification for the deed of Orestes. In the Eumenides223 of Aeschylus, Orestes says to Apollo: ‘Be thou my witness: show, Apollo, whether I slew her justly. The fact of slaying I do not deny: do thou decide whether in thy judgment I slew her justly or not, that I may tell these judges here.’ And Apollo replies224: ‘I am a prophet and will not deceive: never, in my oracular shrine, have I said aught that Zeus, the father of Olympian gods, doth not command. Take note, ye judges, of the value of such a justification.’ So, in the Electra of Sophocles, Orestes says225: ‘When I approached the oracular shrine of Pytho, to learn whereby I might punish the murderers of my sire, Phoebus made answer: “No host of shielded warriors, but thine own guileful craft, O prince, and thine own arm shall deal the death-blow righteously.”’ Even in the Orestes of Euripides, a drama in which, as we shall see,226 the plea of justifiable matricide is almost entirely absent, Orestes tells the Chorus227: ‘Behold! Apollo, who in his palace in mid-earth gives to mortals oracles most clear, by whom we are entirely guided—him I obeyed when I slew my mother. ’Twas he who erred, not I. Is it not enough to remove “pollution” if I transfer the guilt to the god?’
Again, in the post-Homeric form of the legend of the Theban Oedipus, it is Apollo who commands the Thebans to search for the murderer of Laius, and, when they have found him, to put him to death or to drive him from the land.228 In this option of death or exile we have the normal Attic, and, therefore,229 the normal Greek penalty for wilful murder. The direction which Apollo gives, in the Oedipus Rex of Sophocles, is quite general.230 Apollo speaks therefore as a lawgiver, and as a deity angered by unpunished homicide, rather than as a prophet; since he conceals for a time his knowledge of the slayer of Laius. In historical Greek law the penalty for parricide was invariably death. If Apollo had proclaimed the death penalty without the option of exile, for the slayer of Laius, the famous drama of Sophocles would have had to be considerably if not fundamentally altered. The area of the ‘search’ would have been limited to the kinsmen of the deceased Laius. The Homeric story of Oedipus is so very different from the later ‘tragic’ story that the evolution of the legend must have been attended with considerable difficulty. Legend-makers could not ignore the Homeric saga which told231 how Oedipus, having slain his father, ruled over the Cadmeans, even though ‘the gods revealed these things to men.’ How was this fact to be explained from the standpoint of the post-Homeric doctrine of ‘pollution’ according to which all wilful parricides were inexorably put to death? We have suggested that Homer did not understand the mysterious immunity of Oedipus, and that this immunity was derived from a Pelasgian story, based on Pelasgian legal distinctions, to the effect that Oedipus did not really know that it was his father whom he slew, and that therefore Oedipus could not be regarded as a parricide of full guilt. It is also possible to suppose that the old Pelasgian story contained a reference to a further extenuation of Oedipus’ guilt, namely, a certain provocation on the part of Laius and his attendants; Sophocles says that Oedipus was insulted by the herald of Laius and that Laius smote him on the head with his goad.232 Sophocles tells us also that when all the facts concerning the death of Laius had come to light, Kreon, instead of proceeding to punish Oedipus, decided to consult again the oracle at Delphi. Thus, when Oedipus, anxious to avail himself of the option of exile, asks Kreon to drive him from the land, Kreon answers233: ‘Assuredly I should have already done so, did I not first desire to learn from the god what should be done.’ Now if the deed of Oedipus had nothing to extenuate it beyond the fact that he did not know his father when he slew him, he would still have had to suffer the penalties of wilful murder, namely, death or perpetual exile. If, then, Kreon did not immediately proceed to punish Oedipus, but consulted Apollo a second time, this must be attributed either to the element of involuntariness or to the element of provocation, or to both these elements in the legend of Oedipus. These elements of provocation and involuntariness are most important for the legal intelligibility of the Oedipus Coloneus, as we shall see later.234 At present we wish to emphasise the fact that this legend, like the legend of Orestes, became, so to speak, ‘Apollinised’ in post-Homeric times. Such transitions are only intelligible if we assume a connexion between Apollo and ‘pollution.’ We may infer that, in the post-Homeric legend, Apollo took a lenient view of the guilt of Oedipus, from the fact that, in the Oedipus Coloneus, the responsibility for his continued exile is laid not upon Apollo, but upon Kreon and the sons of Oedipus, who wish to enjoy the vacant throne of Thebes.235 According to Euripides,236 Oedipus’ sons imprisoned him, but Kreon drove him into exile.
In the Orestes of Euripides237 it is Apollo who saves Orestes from the wrath of the Argives who have condemned him to death. Apollo decrees that, when Orestes has endured a period of exile and has submitted to a trial at Athens, the Argives must accept as their king a man whom they had already deemed worthy of an ignominious death! In the Electra of Euripides,238 Castor and Pollux refer, by way of prophecy, to the fact that Apollo will ultimately secure Orestes’ deliverance from the Erinnyes.
In the Ion of Euripides239 the Pythian priestess of Apollo commands Ion not to slay Creusa, who had attempted to poison him, and who otherwise would have urged in vain her plea of self-defence and the sacredness of her sanctuary.
In the Andromache of Euripides, Apollo is criticised for having permitted the slaying of Neoptolemus within the precincts of the temple at the hands of Orestes and the Delphians. The Messenger says240: ‘Thus has the Lord who gives oracles to others, who is the umpire for all men of what is right, requited the son of Achilles... like any wicked mortal, he stores in his memory an ancient quarrel.’
Thus the conception of homicide as a pollution permeates all Greek tragedy: however various the legends, however different the localities to which they refer, they all breathe the same Apolline atmosphere. We have already241 quoted Herodotus’ opinion as to the universality of the ‘purgation’ rites by which the pollution of homicide was cleansed. If it be true, moreover, that the laws which regulated the historical Greek treatment of homicide were more or less identical in all the more important and advanced Greek States, would not this fact suggest that the origin of these laws must be sought, not in the genius of occasional local legislators, but rather in the simultaneous universal operation of identical causes? One of these causes, we believe, was the doctrine of pollution.
The legends of Attic tragedy on the whole suggest a uniform system of murder-law in historical Greece. In Euripides’ Orestes242 we are told that Orestes did not follow ‘the common law of the Greeks.’ In the Heracleidae,243 Eurystheus, referring to a threat of murder on the part of Alcmene, says: ‘By the laws of the Greeks, if I am slain I shall cause my slayer to be polluted.’ In the Hercules Furens,244 Hercules, the slayer of his children, feels that men’s doors will be closed against him in all parts of Greece, without exception. We have already245 referred to the possibility that a more severe code of penalties for homicide existed at Sparta than in other parts of Greece. Xenophon246 says that a certain Dracontius was condemned to perpetual exile for involuntary homicide. If we have here a really exceptional penalty, we must attribute it to the peculiarly military character of the Spartan State. But can we be sure that the penalty was exceptional? Plato decrees perpetual exile for involuntary slaying between strangers in any given State247; moreover, for slaying in a passion, which is quasi-involuntary, he decrees perpetual exile for the second offence.248 Xenophon does not give us sufficient details about Dracontius to enable us to regard this penalty as a definite exception. Again, in regard to Crete, we have indicated249 the absence of any reference to wergeld in the laws of Gortyn. This shows the influence of some universal Greek doctrine which led to its abolition. The fact that Apollo was said to have received many of his Delphic priests from Crete,250 and the fame of the Cretan purifier, Epimenides, in the seventh century B.C., point to the same conclusion.
Wergeld and Private Settlement
We must now discuss more fully the question: did the pollution doctrine abolish wergeld? We can answer this question satisfactorily by merely answering another question which is intimately connected with it, namely: ‘was “private settlement” legal in historical Athens?’—‘was it lawful for the relatives of the slain, if they so wished, to abstain from prosecution, and could they legally accept from the slayer a bribe or a gift if they so abstained?’ We do not deny the fact that such settlements did occasionally take place; but if these settlements were legal, then our theory that pollution abolished wergeld cannot stand. We are glad to be able to quote the authority of Philippi251 in favour of the illegality of ‘private settlement,’ but as the arguments of Philippi are rejected by Glotz,252 we must in turn reject the arguments of Glotz! It is strange that Müller, who holds253 that wergeld originated in ‘pollution,’ maintains that in historical times ‘private settlement’ was not valid except in cases of involuntary slaying.254
For the sake of clearness we will summarise our own conclusions in advance. We believe that ‘private settlement’ was permitted by law or custom—it was not expressly prohibited or permitted by any written code—whenever a ‘release’ from blood-guilt on the part of the victim, before death, was formally granted, or, in the absence of a ‘charge,’ could be tacitly assumed; but that otherwise ‘private settlement’ was a sin, a religious quasi-criminal offence, and must therefore have been legally invalid, in the sense that the offender was liable to prosecution.255 This view is not only consistent with, but is in part derived from, our theory of the incompatibility of ‘pollution’ and wergeld. ‘Private settlement’ is not, of course, wergeld in the strict sense, but it has this much in common with it, that it allowed the slayer to remain in his native State for the rest of his life. His presence was not a cause of pollution.
We have seen256 that the Greek religious doctrine of homicide as a ‘pollution’ expresses a compromise between the newly evolved power of synoekised States and the traditions of the tribes, between the ideals of an international autocratic Apollo and the claims of the Erinnyes of the slain who reflected the desires of the dead and of their relatives. It follows that whenever the laws which resulted from this compromise were observed, whenever the prescribed penalty or atonement was paid, Apollo and the Erinnyes were logically compelled to accept the ‘appeasement’ and to signify by their consent, in certain cases, to the ceremonial of ‘purgation’ that the ‘pollution’ of the criminal was washed away. But it was never forgotten that, in theory, the pollution of the slayer had a twofold source: that the stigma of bloodshed was, so to speak, bicellular, and was expressive of the anger of Apollo, on the one hand, and of the anger of the Erinnyes on the other. It is obvious, therefore, that a ‘release’ on the part of a dying victim precluded any serious anger on the part of the Erinnyes, whereas a victim’s solemn command to his relatives to prosecute his slayer257 set in motion the entire supernatural vigour of the avenging Erinnyes. Thus in the Eumenides of Aeschylus258 the Furies tend to go to sleep and to forget until they are goaded into activity by the ghost of the slain Clytaemnestra. Hence it is correct to maintain that in the event of a formal or presumed ‘release’ on the part of a dying victim, the slayer was not in any real sense polluted. In such cases, the slayer may have had to undergo ‘purgation’ of a minor kind, one of these local supplementary ‘purgations’ which were intended to free the citizens from religious scruple.259 Purgation, we have said, was not symbolical of guilt, but rather of atoned guilt or of innocence. But in such cases the slayer was not really ‘polluted.’ His presence in his homeland did not anger the dead or the gods. But if the dying victim did not formally release his slayer, if he charged his relatives to prosecute, then in all cases, even in the event of justifiable homicide, the slayer was ‘polluted’ until he was formally purged. This purgation could not be performed by any ordinary person or at any ordinary time. The conditions of its performance were regulated by Delphic law and by State law. Once charged by the relatives of the slain, the accused had either to admit guilt or to advance a ‘plea,’ and the civic penalty had to be paid before purgation was permitted.
It is difficult to understand how Glotz can attribute to ‘pollution’ a considerable influence in abolishing ‘private vengeance’ and in necessitating State interference in homicide,260 and at the same time maintain261 that in historical State justice ‘private settlement’ was legal as an option for prosecution. Attic law proves that the slayer was ‘polluted’ during the long period of time—three or four months—which intervened between the first public accusation, at the funeral of deceased, and the trial.262 He could not enter the city temples, or frequent the public places, under penalty of death. Glotz admits263 that a person who was accused but unconvicted of murder was ‘polluted,’ but he seems to think that the pollution could be privately purged or ignored altogether. ‘Before the public accusation,’ one may say, ‘the slayer was not polluted.’ He was perhaps not publicly known to be ‘polluted,’ we admit. But in reality we believe that he was polluted when the ‘victim’ died without ‘release.’ If the relatives chose to hush the matter up, this did not destroy the real ‘pollution.’ If the matter became known to the public, these relatives could themselves be indicted on a charge of impiety.264 They had broken the religious laws, the unwritten customs, of the State. They could not righteously ‘settle’ except in the event of ‘release.’
We will now support and illustrate our views by a few quotations. Demosthenes265 tells us that ‘if the victim (ὁ παθών) himself releases the slayer from guilt of blood before he (the victim) dies, it is not lawful for the relatives to prosecute.’ This is a most important piece of evidence, although the context in which it occurs is vitiated by rhetorical exaggeration. It means, in effect, that in any kind of homicide266 the relatives of the slain were powerless in regard to prosecution if the dying man ‘released’ his slayer and did not ‘charge’ them to avenge him. Thus even the homicide laws of a theocratic Apollo and of centralised Greek governments depend for their operation on the will of the victim. In such an event the slayer was not ‘polluted.’ No impiety, no illegality was involved in ‘private settlement’ in such a case; on the contrary, to prosecute the slayer would probably have been impious. Not even a charge of involuntary homicide (which was possible in the case of simple ‘forgiveness’ on the part of the dying) could be brought against the slayer, if the victim ‘released’ him from all guilt of blood. This decree of the dying was tantamount to a ‘release’ in law; it did not merely reduce the charge to one of justifiable or accidental slaying. Hence the ‘private settlement,’ which no doubt occasionally occurred in such cases, was not so much a bribe offered to prevent prosecution as an informal offer of material retribution—a relic of the old-time wergeld traditions of tribal Greece.
In a speech of Lysias which is concerned with political or judicial murder, we are told267 that one of the condemned, named Dionysodorus, summoned his brother and sister and brother-in-law to prison before he died and charged them ‘and all his kindred’ (φίλοις) to punish as a murderer Agoratus who had given the false information which led to his condemnation. Thus we see converted into a charge of wilful murder an act which ordinarily would have been regarded as political perjury. The relatives of Dionysodorus actually decided to take the law into their own hands268—political ferment demands such drastic action—and they would have slain Agoratus as a criminal (κακοῦργος) if Anytus, the general, had not persuaded them, on grounds of public policy and expediency, to desist. The Thirty Tyrants acquitted Agoratus later, presumably because of political prejudice. The plaintiff in this speech269 appeals to the Heliasts to do the pious and just thing and to condemn him to death. Thus we see how the relatives of a slain man were directed and compelled by the ‘charge’ of the dying. There was nothing involuntary about this case of homicide, as some writers seem to assume.270 It was deliberate political murder.
Müller says271: ‘When a verdict of manslaughter was returned it was allowable for the prosecutor and the accused to enter into a compromise on the spot, if they pleased.’ He admits, however, that ‘in the regular mode of procedure, the convict quitted his country by a certain road and at a certain time and remained absent’ until he ‘appeased’ the relatives of the slain, ‘whereupon he was permitted to return home under certain prescribed forms, and, after the due performance of sacrifices and rites of purification, he was at liberty to dwell once more in his native land.’ The question of the ‘appeasement’ of relatives after exile in cases of involuntary homicide will come up for discussion later.272 At present we are speaking of ‘compromise,’ or of ‘private settlement,’ without exile: we may note Müller’s admission as to the ‘regular mode of procedure.’ He cites no authority for his statement about a ‘compromise.’ Plato uniformly insists that a period of exile was always compulsory in cases of involuntary homicide.273 ‘Forgiveness’ on the part of the ‘dying’—as distinct from ‘release,’ which Plato has not in mind274—always reduced the charge to one of manslaughter. Hence we have argued that ‘release’ abolished all guilt and pollution. Speaking of ‘forgiveness’ Plato says275: ‘If any person of his own accord gives an absolution (ἄφεσις) to anyone for such a deed let the purgations take place for the slayer as if the act had been involuntary and let there be a period of one year in exile according to law (ἐν νόμῳ).’ Speaking of general cases of manslaughter, he says276: ‘If anyone kills involuntarily a freeborn person, let him be purified with the same purgations as he who has killed a slave and let him not dishonour a certain ancient legend... hence the slayer must withdraw (into exile)... for all the seasons of a single year.’ The legend which Plato mentions is suggestive: ‘A freeman slain by violence was,’ he says, ‘angry with his murderer while his death was still recent... and seeing his slayer roaming about in the places which he himself frequented (when alive) shuddered at the thought and, sore distressed, harasses with all his might the slayer and his movements, using memory as an ally in the task.’ Here we can plainly detect that minor local ‘pollution’ which was caused by the temporary resentment of the slain, and such ‘pollution’ could only be removed by a period of exile. There is a difference, then, between ‘release’ and ‘forgiveness.’ In the latter case the slayer was still ‘polluted’: the ghost has absorbed the anger of the gods which is caused by the shedding of blood. Hence we think that the relatives were not free, in such a case, to ‘compound’ with the slayer except at the risk of incurring the anger of the dead and of the gods. We agree with Müller’s statement regarding Plato277—namely, that his ‘scheme of criminal law is in the main based on the same principles as the Attic code.’ But in his theory of the legality of ‘private settlement’ in cases of manslaughter Müller seems to have omitted to notice these passages which we quoted from Plato. He was probably influenced, in his judgment, by one or two passages in Demosthenes which are obviously rhetorical and which we shall presently discuss.278
Glotz also attaches considerable importance to such Demosthenic passages, forgetting that they are not legal documents and that they are, moreover, inconsistent with other passages from the same author. Glotz is anxious to establish the theory that wergeld was abolished in Athens not by Dracon, as is generally held, but by Solon, who sought to exalt the power of the State and to weaken the influence of the clans. To arrive at this conclusion, Glotz boldly assumes that a certain clause in a Draconian law, namely that which forbade the acceptance of ‘ransom’ from a murderer found in his home-land after conviction, was not inscribed by Dracon but by Solon.279 Our opinion is that neither Dracon nor Solon abolished wergeld, but that it had been already rendered sacrilegious by the Apolline doctrine of pollution in the seventh century B.C. The laws of Dracon do not anywhere mention real wergeld—they simply assume that such a system was obsolete. But the phrase μηδ’ ἀποινᾶν in the Draconian law,280 which is usually but quite erroneously connected with wergeld, suggests, if it does not prove, what Glotz would not apply to the period of Dracon or of Solon—namely, the fact that ‘private settlement’ was illegal. Why should a law forbid the ‘ransom’ of a murderer’s life after conviction if it permitted such a ‘ransom’ before conviction? Leaving aside religious considerations, which we, however, believe to be essential to the matter, and viewing the question from the standpoint of Glotz’s own pet hypothesis as to the exaltation of State power,281 we believe that the opposite procedure would have been more logical—that a State would more naturally have prohibited ‘ransom’ before conviction, but permitted it afterwards, when the property of the slayer had found its way into the coffers of the State, and when the State had extracted all that it could possibly extract from the unfortunate slayer! But, as a matter of fact, the ‘ransom’ which is prohibited by this law of Dracon was not a real ‘ransom’ of the slayer’s life in the legal sense. It refers only to a slayer caught ‘en rupture de ban.’ It was merely a bribe which the slayer would be disposed to offer to any citizen whom he encountered in order to be allowed to escape from forbidden territory. His life was still forfeit if he returned again, or even if he did not succeed in escaping after he had bribed, say, one citizen, out of the total number of citizens in the State. The law says: ‘It shall be lawful to kill murderers (found) in our territory... but not to amerce them.’ The penalty for ‘amercement’ was ‘double the amount extorted.’ To our mind the law suggests the illegality of ‘private settlement’ rather than the abolition of wergeld! Glotz, moreover, seems to ignore the Demosthenic references to a γραφὴ ἀσεβείας, an indictment for impiety, which could be brought against the relatives of a slain person if they did not prosecute the slayer. We need not dwell upon the importance of a γραφὴ in Attic law. It denoted a most important species of public accusation, similar to our modern indictments or impeachments. Human nature being what it is, and Greek human nature being what it was, can we conceive that a Greek would have omitted to propose a ‘private settlement’ if it had been legal for him to do so, as an option for prosecution? Can we conceive that prosecutions for homicide would ever have occurred if such an option would have freed the relatives of the slain from liability to a charge of impiety which involved their banishment and the confiscation of their property? We must then rather assume that the guilt of impiety would have been still incurred if the relatives of the slain accepted ‘settlement’ and failed to prosecute.
Glotz makes no reference to the γραφὴ ἀσεβείας. We agree with him282 that there was no γραφὴ φόνου in Attic law, but we do not understand why he should credit Solon with the institution of γραφαί for ὕβρις and κάκωσις, but omit to mention ἀσέβεια. The indictment for impiety, which we attribute to Solon,283 is incompatible with ‘private settlement’ for homicide, which Glotz believes to have been legal in the days of Demosthenes as in those of Solon. Let us see what Demosthenes has to say of this indictment.
In his speech against Androtion284 a certain Diodorus says of Androtion: ‘He accused me of a deed which anyone who was not of his type would have been afraid to mention, namely, of slaying my own father: he prepared an indictment of impiety285 not against me, but against my uncle, impeaching him for impiety in associating with one who, as alleged, had committed this crime; he put him on trial, and if he happened286 to be found guilty—what man would have suffered a more cruel fate than I would at this man’s hands? What citizen (φίλος) or stranger would have ever consented to associate with me? What city (i.e. State) would have tolerated within its precincts a man who appeared to have perpetrated such an impious deed? None whatever.’ It is noteworthy that the indictment, which is here referred to, was brought, not against the alleged parricide, but against his uncle. The reason is not, as Glotz would maintain,287 that parricide was not a crime in historical Athens, but that direct prosecution of homicides was limited, by a legal technicality, based on immemorial custom, to the relatives of the slain. If Glotz’s theory of unrestrained ‘private settlement’288 is assumed, what a glorious hunting-ground for unscrupulous blackmailers must Athens have been! We can conceive Diodorus’ uncle approaching Diodorus with his hand outstretched and crying ‘Your money or your life’! We can also conceive any outsider—there is no limit to the number—approaching the uncle of Diodorus equally determined to ‘settle’ the indictment for impiety! This is much too absurd for reality, even in a modern State, not to speak of the ancient city with its ubiquitous gods and ghosts and scruples! This passage explains, incidentally, an episode in the Euthyphro of Plato.289 Euthyphro proposes to accuse his father of homicide, since a poor freeman in his employment at Naxos, whom his father had put in chains and cast by the wayside to await the decision of the Exegetae regarding the slaying of a slave by his freeman employee, had died of hunger and neglect. Socrates asks if Euthyphro is a relative of the freeman. Euthyphro says that he is not, but that he is ‘polluted’ by associating with his father who is a murderer, and that he is therefore bound to prosecute him. Plato, as we have said, is probably here posing a problem which the Attic legal mind would have found it difficult to solve. But the atmosphere of the dialogue is very far removed from that of ‘private settlement’ for homicide.
That the action of Euthyphro was from one point of view impious (ἀνόσιος), which is to say of doubtful legality, is suggested by another passage in Demosthenes.290 A nurse in the employment of the plaintiff died as a result of rough treatment at the hands of two men who came to his house to distrain his goods and chattels. The plaintiff tells how he went to the Interpreters to ask their advice. The Interpreters said that the only course which was open to him in law was ‘to carry a spear in front of the funeral procession, and at the tomb to publicly inquire (προαγορεύειν) if the woman had any relative, and to watch the tomb for three days’! ‘For the woman,’ they said, ‘was not akin to you, nor even a slave of yours... and it is to relatives and “masters” that the law assigns the duty of prosecution.’ The plaintiff then looked at a copy of Dracon’s laws and consulted his friends, and taking into account the fact that he was not a personal witness of the assault and could not find any witnesses that would weigh with a court, he obeyed the Interpreters, and refrained from further action. The Draconian law required, we are told, that in taking the oath in a murder charge the accuser had to state definitely in the court in what relationship he stood to deceased or whether the deceased was his slave. This technical legal condition, the demands of this legal formula, could not be complied with by the plaintiff. Hence it is doubtful if Euthyphro could have complied with them, unless, perhaps, he regarded himself as a kind of ‘master’ in relation to the deceased freeman.
But the indictment for impiety was based on the religious doctrine of pollution rather than on clan-technicalities connected with funerals and burial and obsolete wergeld agreements. It is an instance of unsolved conflict between these two systems which we find in the Euthyphro and in the speech against Androtion—a conflict which was in other respects mitigated by the compromise we have described291 in historical Greek homicide law. The indictment for impiety could be brought by any citizen against the relatives of a murdered man, if they failed to prosecute, and if the dying man had not given a ‘release.’ If such failure to prosecute was impious, then surely a ‘private settlement’ which prevented prosecution was also impious.
We will now examine two passages—one from Demosthenes, the other from Aristophanes—which Glotz quotes in support of his theory of the legality of ‘private settlement.’ Glotz’s theory is clearly stated in these words292: ‘Il est improbable que la réconciliation ait été explicitement interdite et le silence de la loi valait une permission. Par autorisation formelle ou par tolérance, ouvertement ou tacitement l’Etat devait consacrer dans tous les cas le privilège de la famille.’ The only thing, in Glotz’s view, that would have forced a ‘recourse to the State’ was the absence of unanimity in the relatives concerning the amount for which they would ‘settle.’ One dissentient voice compelled a recourse to prosecution.293
In the speech of Demosthenes against Theocrines294 we read that a certain Theocrines whose brother had been murdered threatened to bring Demochares, the alleged murderer, before the Areopagus, unless he paid him a sum of money. The money was paid, and that was the end of it! The relevant passage reads: ‘Not very long after his dismissal, his brother was slain by violence. Mark how he behaved! He made inquiries as to the murderers, and having discovered who they were, he accepted a sum of money and abandoned further proceedings. He went round threatening to bring Demochares before the Areopagus until he “compounded” with the guilty parties. What an honest and trustworthy man!’ Philippi’s conclusion295 that the action of Theocrines was illegal does not convince Glotz, who inquires296: ‘Qu’est-ce donc qui retient Démosthène de flétrir un tel pacte comme illicite?’ But it is quite obvious that the action of Theocrines is presented by Demosthenes as unusual and disgraceful. The object of Demosthenes, in the speech, is to emphasise the mercenary character of Theocrines. He is more concerned with this aspect of Theocrines’ action than with its legality or illegality. We may therefore answer Glotz’s question by asking another: ‘If this action was legal, why does Demosthenes refer to it as a disgrace?’ Or, again: ‘Could an act be described as illegal which was not expressly prohibited by law?’ Glotz in seeking to prove that ‘private settlement’ was legal infers that it was legal because it is not here declared illegal! This argument seems to us invalid. Demosthenes wrote speeches for private and public litigants. Sometimes he emphasised one point, sometimes the opposite point. He does not wish to stultify himself unnecessarily. He is not a self-constituted legislator, as Plato, in his ideal world, was. He leaves the legal decision to the jury and aims merely at a victory in the suit. Moreover, we must point out, in Attic law there was a Statute of Limitations. If Theocrines kept his secret to himself, and if he had no religious scruples about the matter, he could, after a number of years, have divulged it with impunity. But Demosthenes speaks as if the whole action only took twenty-four hours! This may be excellent rhetorical skill, but it may also involve a complete distortion of facts. We admit, of course, that ‘private settlements’ for homicide did occasionally take place in historical Athens, as they do in modern States. The actuality of such a settlement may perhaps be inferred from this speech of Demosthenes, but certainly not the legality of it.
The second text which Glotz adduces in support of his theory is a passage from the Frogs of Aristophanes,297 in which Euripides criticises as a redundant expression the following Aeschylean verse298 which describes the return of Orestes to Argos after his sojourn as an exile in Phocis:
ἥκω γὰρ ἐς γῆν τήνδε καὶ κατέρχομαι.
Aeschylus, in reply, denies that there is any redundancy in the verse, asserting that there is a very real difference between the home-coming of a citizen and that of an exile. Euripides, changing his ground, attacks the application of the verb κατέρχομαι (‘I return from exile’) to Orestes, because, he says, Orestes came home secretly, without having duly ‘appeased’ by gifts those who were competent to permit his return.299
It does not, says Glotz,300 occur to Euripides to say that no ‘appeasement’ was possible in the case of Orestes; and since, in the eyes of Aristophanes, the deed of Orestes was regarded as wilful murder, therefore, Glotz argues, Aristophanes may be regarded as implying in this passage that a wilful murderer could always return to his home-land, if he happened to be abroad, provided he paid ‘compensation’ to the relatives of the slain!
There is a strange but very obvious error in this reasoning. Glotz has forgotten that in the early portion of the Choephoroe, in which the verse in question occurs, Orestes has not yet slain his mother! At this stage, therefore, he was not a murder-exile at all. He was merely a political or a quasi-political exile. Homer and later legend are quite clear in regard to the nature of this exile. Hence, obviously, the ‘persuasion of those in power’ in this passage has no connexion with homicide, and is, for Glotz’s argument, irrelevant. The return of political exiles was a common occurrence in the Greece of Aristophanes and Euripides. The persuasion used in such cases may have consisted merely of some kind of promise or undertaking to obey the existing government, but it may of course occasionally have taken the form of gifts or bribes. But the ruling power at Argos which Orestes would have had to persuade consisted of his deadliest enemies, Clytaemnestra and Aegisthus. He came home without their sanction and without their knowledge; Euripides therefore is right in his opinion that Orestes did not come home by permission of the Argive ‘government.’ The verb κατέρχομαι, which normally implies a formal and ‘recognised’ return, has not therefore here its normal meaning. Aeschylus is therefore technically in error in his use of this word, but he is right in maintaining that there is no verbal redundancy in the verse.
Apart from the irrelevance of this quotation, as an argument for the legality of ‘private settlement,’ we may point out that we have no reason for believing, as Glotz believes, that Aristophanes regarded Orestes as a wilful murderer. Aeschylus in the Eumenides makes the Erinnyes say so,301 but their viewpoint is shown to be mistaken by an Athenian Court. Euripides also was aware that not only Homer but several Attic legends conceived Orestes as very different from a murderer.302 In spite of the variety and the confusion which characterised the Oresteian legends, Aristophanes, Euripides and Aeschylus were probably well aware that the Homeric and legendary accounts of the exile of Orestes at Athens or at Phocis had no connexion with the penalty for homicide. We can only say of Glotz’s reasoning here:
Indignor quandoque bonus dormitat Homerus.
There is another passage in Demosthenes, to which Glotz seems to attach considerable importance, but which does not in our view warrant the conclusion which he has drawn from it. In a speech against Nausimachus, in which an action for breach of trust is brought by the plaintiff against his guardian Aristaechmus, who had, fourteen years before, compromised the dispute by a payment of three talents, Demosthenes is naturally led, in defence of Aristaechmus (or his son) the plaintiff, to emphasise the dishonesty of proceeding with an action where a ‘release’ has been previously granted. Incidentally, the orator happens to refer to ‘private settlements’ for homicide in the following passage303: ‘This I presume you will all acknowledge, that other people have suffered wrongs before now, of a more grievous nature than pecuniary wrongs, for example, unintentional homicides, profane outrages and many similar offences are perpetrated; yet in all these cases the injured parties are finally and conclusively barred when they have come to a settlement and given a “release.” This rule of justice is so universally binding that when a man has convicted another of intentional homicide and clearly proved him to be “polluted,” yet if he afterwards condones the crime and “releases” him he has no longer the right to force the same person into exile. Nor again where the murdered man has released his murderer before he died, is it lawful for any of the relatives to prosecute, but those whom the laws sentence, upon conviction, to banishment or exile or death, if they have been released, are by that word “release” at once absolved from all penal consequences.’ This passage is repeated verbatim in the speech against Pantaenetus.304 Müller305 points out that both passages are ‘disputed’ by many scholars. He thinks that there should only be a reference to involuntary homicide.
It is of course possible that for the word ἐκουσίου (voluntary) Demosthenes wrote ἀκουσίου (involuntary). So Müller would emend the passage. But, apart from such a solution, the very fact that Nausimachus was legally entitled to sue, even after a ‘compromise’ or ‘release,’ proves that Demosthenes is rhetorical rather than logical. As the passage stands, it is in direct conflict with the law of Dracon forbidding ‘amercement’ after conviction, a law which we have already quoted.
We are convinced that such ‘settlements’ were illegal and criminal in cases of wilful murder. In manslaughter cases, at least one year’s exile was necessary, with or without trial.306 In practice some of the relatives may have drawn up a ‘release’ immediately, and such relatives could not perhaps take part in expelling the slayer. Our conclusions on this question will appear more fully later.307 We have already referred308 to ‘the release’ which was given by the dying as a most important factor in Greek homicide-law. We also admit that ‘settlements’ were occasionally made, though not legally authorised, and it is clear that such ‘settlements’ could easily be confused with the ‘appeasement’ of relatives in manslaughter cases, especially in the pleadings of an orator.
We should contrast with this Demosthenic passage another from the speech against Aristocrates,309 in which there is reference to involuntary homicide. ‘If,’ he says, ‘the accused be convicted and be found to have done the deed, neither the prosecutor nor anyone else has control over him, but the law alone. And what does the law command? That a person convicted of involuntary homicide shall on certain stated days leave the country by an appointed road and remain in exile until he has appeased certain of the relatives of the slain... above all it is right that the laws should control everybody and everything.’
Similarly, in his speech against Meidias,310 a judge who accepted money in settlement of a prosecution for ‘assault’ is said to have taken no account of the laws: and another man who ‘settled’ a case of assault is said ‘to have bidden farewell to the laws.’
As an instance of Demosthenes’ rhetorical skill in the distortion of the meaning of words, we may refer to a passage in the Third Philippic.311 The question at issue was really one of treason, not of murder. A certain Arthmius of Zelea (in Asia), having distributed Persian gold for political purposes at the time of the Persian invasion of Greece, was solemnly declared ἄτιμος by the Athenian people. Now a decree of ἄτιμία for treason involved much more severe consequences than the historical exile penalty for murder. It was the sole historical survival of collective and hereditary punishment, and involved not only the traitor but also his family and all his posterity (αὐτός τε καὶ γένος).312 In practice, no doubt, it was but a trifling penalty to an Asiatic, like Arthmius, who had no intention of living at Athens or in the Athenian confederacy. But Arthmius was declared by this decree to be an outlaw within the territory of Attica or within the Athenian Empire. If found within this territory, he, or his descendants, could be slain with impunity. Demosthenes, anxious to illustrate the patriotism of the Athenians of former days, compared with that of his contemporaries, by showing the severity with which treason was formerly punished, even in a foreigner, has recourse to the subtle hypothesis that ἄτιμος in the decree against Arthmius did not mean merely ‘degraded’ from civic rights but should be linked up with a verb τεθνάτω, to form a clause which means ‘let him be slain with impunity.’ The word ἄτιμος in this decree has, he says, the same significance as it bears in the murder-laws ‘in the case of murderers for whom the legislator forbids a prosecution for homicide,’ where it is said ‘ἄτιμος τεθνάτω.’ It is true that the word ἄτιμος could be used to mean ‘unpunished,’ but when the Athenians declared a person ἄτιμος, they meant by the word ‘degraded’ not ‘unpunished.’ They declared the person ‘dishonoured,’ or degraded from civic privileges. Moreover, in the laws of Dracon as Demosthenes quotes them the word ἄτιμος does not occur, and the adverb used to denote ‘with impunity’ is νηποινεί. Plato also has ἀνατί.313 Demosthenes, then, is quite capable of juggling with words and with the wording of laws, in his desire to secure a rhetorical victory. But here Demosthenes, without knowing it, weakens the very point which he desires to emphasise. A decree of ἄτιμία for treason was much more severe than any penalty in the Attic murder laws. A murder-exile could be slain with impunity, as a traitor could, if found within Athenian territory. But his descendants could not! His family could remain securely at Athens, in full enjoyment of civic rights. If the word ἄτιμος in the decree against Arthmius meant what Demosthenes asserts that it meant in the murder-laws, then it is incorrect to speak of the punishment of the traitor and his descendants (αὐτός τε καὶ γένος). Now what does Demosthenes mean by the phrase ‘in cases where the legislator forbids a trial for homicide’314? The context gives the only possible meaning: he means, in cases where an already convicted murderer returned to forbidden territory and could be slain with impunity without trial.
We shall return to this question in our next chapter, when treating of manslaughter in Attic law, but we may for the present conclude, as the most probable hypothesis, that in historical Athens ‘private settlement’ as a means of absolution from homicide guilt was sinful and legally punishable, in all cases where the dying victim did not grant a ‘release’ and where a public prosecution was otherwise legally possible. This hypothesis, if correct, shows that amongst the Greeks, as amongst the Semites, wergeld was abolished by the religious doctrine of homicide as a ‘pollution,’ as an offence against supernatural beings.
Assuming, as a result of our general reasoning in this chapter, and for other reasons which will presently appear, that the historical murder laws of Greece were as universal and as uniform as the Greek purgation-rites for homicide, assuming that the novelties which they contain, in regard to their ideals of punishment, and their insistence on compulsory State trial, were not the creation of local legislators, but the product of international Amphictyonies which expressed their compacts in oracular decrees—compacts which were only gradually evolved in a compromise between local customs or desires and a new religious doctrine which was adopted from Asiatic peoples—we will now proceed to a brief colligation of the Laws of Dracon concerning homicide, and after giving such commentaries as these laws may seem to demand, we will then review the Attic murder-courts and offer an explanation of their origin and evolution.
Footnotes
1 Thuc. i. 12.
2 H. and H. p. 259.
3 Op. cit. p. 54.
4 Ib. p. 255.
5 Op. cit. p. 259.
6 E.A.G. p. 405.
7 P. 330.
8 Dorians, vol. ii. pp. 64-6; see also Ridgeway, op. cit. p. 659, and Thuc. ii. 101, iv. 78, viii. 3; Demosthenes, Phil. ii. 71, Olynth. ii. 20.
9 Op. cit. ii. 71.
10 iv. 126.
11 E.g. Holm, H.G. i. 175; Gilbert, G.C.A. p. 4; Herod. v. 72, vi. 51.
12 Pausanias, iii. 22. 7.
13 Müller, op. cit. ii. 18-23.
14 Athenaeus, vi. 265; Müller, op. cit. p. 31.
15 Müller, op. cit. ii. 54-8.
16 Op. cit. p. 334.
17 Ib. p. 250.
18 Leaf, p. 315; Müller, Dorians, ii. 71.
19 Op. cit. p. 259.
20 Op. cit. vol. ii. p. 18.
21 H.G. i. 180.
22 H.G. vol. ii. chap. 6, p. 262.
23 Op. cit. pp. 10, 40.
24 Anab. iv. 8. 25; infra, p. 173.
25 See Aristotle, Politics, 1271 b 22; Strabo, x. 481.
26 E.A.G. p. 629.
27 Op. cit. p. 339.
28 Dorians, ii. 65.
29 P. 52.
30 H.G. p. 161.
31 Life of Philip, p. 30.
32 i. 2 (Jowett).
33 i. 6.
34 i. 12.
35 Op. cit. p. 225 ff.
36 Works and Days, 182-193; supra, p. 122.
37 Op. cit. p. 228.
38 See also Coulanges, op. cit. p. 336 ff.
39 Pp. 325-327.
40 P. 397.
41 i. 12.
42 Op. cit. pp. 171-2.
43 i.e. apart from the Erechtheum (i. 26).
44 Coulanges, pp. 171-2.
45 P. 173.
46 Theseus, 24.
47 ii. 15.
48 Dorians, i. p. 256.
49 Op. cit. p. 332.
50 Op. cit. p. 169.
51 See, further, article J.H.S. xl. Part ii. p. 202, and Pollux, viii. 109-111.
52 Op. cit. pp. 320 ff.
53 Ib. p. 331.
54 Ib. p. 338.
55 Ib. pp. 345-6.
56 Ib. p. 365.
57 Ib. p. 369.
58 Op. cit. p. 373.
59 Ib. p. 354.
60 See infra, Bk. II. ch. iii.
61 See also Gilbert, G.C.A. (Eng. trans.), p. 350.
62 Glotz, op. cit. p. 328.
63 Coulanges, op. cit. p. 158; supra, p. 88.
64 See Pollux, viii. 111.
65 Social Life in Greece, pp. 16-18.
66 Greek Civilization, p. 32.
67 Ib. p. 41.
68 Hall, History of Near East, p. 47.
69 H.G. p. 77.
70 Op. cit. p. 78.
71 Op. cit. p. 113.
72 Ib. p. 114.
73 See Glotz, op. cit. pp. 231 ff.; Kinkel, Epic. gr. fragm. i. p. 33.
74 i. 35.
75 Infra, p. 151.
76 Supra, p. 118.
77 Cicero, Top. 17; Müller, Eum. p. 107.
78 Genesis ix. 6; Numbers xxxv. 11-34.
79 I.e. without intent to kill.
80 Exodus xxi. 12.
81 I.e. if one slays by accident.
82 Exodus xxi. 12.
83 Numbers xxxv.; cf. Deuter. iv. 41, Joshua xx. 1-9.
84 Op. cit. p. 153.
85 ii. 102 (Jowett).
86 Genesis iv. 11-15.
87 Laws, ix. ch. 12.
88 Supra, p. 110.
89 ii. 2. 3.
90 Proleg. p. 221.
91 Il. vi. 155-205.
92 Müller, Eum. p. 92; Smith, Dict. Gk. Ant. s.v. φόνος.
93 Op. cit. p. 314.
94 Infra, p. 173 ff.
95 Dem. in Aristoc. 632, 634.
96 Op. cit. p. 218; infra, p. 166.
97 Supra, p. 122 ff.
99 See infra, p. 181, and Dem. in Androtion. 593.
100 Dem. c. Pantaen. 893, 59; infra, p. 176 ff.
101 Lysias, c. Agor. 41, 78.
102 1-6.
103 5E.
104 e.g. Rep. ii. 379D-383.
105 Laws, ix. ch. 11.
106 Laws, ix. ch. 9.
107 Aesch. Eum. 886.
108 Ib. 655, 660.
109 P. 155; Dinarchus, 47; Antiphon de Caed. H. 11; Pausan. i. 28. 6.
110 Supra, p. 112 ff.
111 Aesch. Eum. 283.
112 Eur. Iph. T. 1224.
113 i. 24.
114 i. 35.
115 255 ff.
116 470-485 (trans. L. Campbell).
117 sc. vessel.
118 107.
119 Supra, p. 148; Glotz, op. cit. p. 155.
120 Laws, ix. ch. 8.
121 But see infra, p. 153 ff.
122 1175-1230.
123 Apollod. ii. 2. 3.
124 i. 35.
125 Aristotle, Ath. Pol. ch. 1.
126 Dorians, i. 227-8.
127 Iph. Taur. 1175 ff.
128 Eum. 235-245, and 447-9.
129 e.g. ix. ch. 12.
130 Eum. 581.
131 See Dem. in Androtion. 593, 26; and Plato, Laws, ix. ch. 12.
132 Eum. 448.
133 For the Attic Court Phreatto see infra, ch. iii.
134 Eum. 451 ff.
135 470-485.
136 See supra, p. 151.
137 840 ff.
138 Eum. p. 136.
139 Areop. p. 63.
140 See Plato, Laws, ix. ch. 8.
141 Supra, pp. 113 and 119 ff.
142 Infra, p. 173 ff.
143 Il. ix. 404.
144 Il. ii. 520; Müller, Dorians, i. 226-232.
145 1-10; see also Pausanias, x. 5.
146 Cf. Aesch. Eum. 18.
147 x. 5.
148 Harrison, Themis, pp. 396-429.
149 See James, Varieties of Religious Experience, p. 387 ff.
150 Euripides, Ion, 226 ff.
151 Ibid. 225.
152 Eum. 95-200.
153 Ael. Var. Hist. iii. 1; Plut. Q. Gr. xii.
154 Aeschylus, Eum. 440.
155 Dorians, i. 297 ff.
156 Il. ii. 517; ix. 405.
157 See Bury, H.G. p. 361.
158 Op. cit. p. 157.
159 Op. cit. p. 695.
160 Coulanges, op. cit. p. 279; Müller, Dorians, i. 258, 270, 272-9.
161 Müller, op. cit. p. 232; and Euripides, Ion, 1111, 1220, 1256 there quoted.
162 Cf. Plato, Laws, ix. ch. 11, re kin-slaying: ‘let the judges of these matters be the same as those to whom has been given the power of deciding upon sacrilege.’
163 Müller, i. 263-5.
164 Bury, op. cit. p. 159.
165 Law of Dracon, Dem. in Arist. 632.
166 Cf. Coulanges, p. 279.
167 Thuc. ii. 102.
168 Her. vii. 197.
169 s.v. ἐξηγηταί.
170 Laws, vi. ch. 7.
171 1-6.
172 Ancient City, p. 252.
173 Xenophon, Anabasis, iv. 8. 25; see infra, p. 173.
174 Arist. Ath. Pol. 7. 1.
175 Plutarch, Solon, 17.
176 Op. cit. p. 252.
177 Laws, ix. ch. 12.
178 See Aeschylus, Agam. 1557.
179 Supra, p. 47 ff.
180 See article, s.v. φόνος, in Daremberg and Saglio, p. 440.
181 Laws, ix. ch. 12.
182 See infra, pp. 229, 236 ff.
184 Bk. ix. ch. 12.
185 See Demosthenes in Aristoc. 637.
186 See Laws, ix. ch. 8.
187 ὁ ἐκ Δελφῶν κομισθεὶς νόμος ἤγουν χρησμὸς ἐπὶ τοῦ ἄκοντος ἀνέλοντος τὸν φὶλον. ἔκτεινας σὸν ἑταῖρον ἀμύνων, οὐ σε μιαίνει αἷμα, φόνου δὲ πέλεις καθαρώτερος ἢ πάρος ἦσθα... ὁ ἀνδρὶ φιλῷ θνήσκοντι πάρων πέλας οὐκ ἐπάμυνας, ἤλυθες οὐ καθαρός.
188 Pausanias, i. 28. 10.
189 Supra, p. 157.
190 In Aristoc. 632.
191 Supra, p. 145.
192 In Aristoc. 632-634.
193 Infra, p. 164 ff.
194 See supra, p. 142 ff.
195 Op. cit. p. 218.
196 Laws, ix. ch. 8.
197 Ib. ch. 11.
198 Ib. ch. 8.
199 τῆς χώρας τῆς τῶν νόμων τῶνδε κυρίας.
200 Dem. in Aristoc. 647-8.
201 Loc. cit.
202 Supra, p. 145.
203 Op. cit. p. 218.
204 Ib. p. 214.
205 vii. 238.
206 viii. 114.
207 ix. 64.
208 i. 156, 157.
209 Op. cit. p. 214.
210 Pyth. ii. 32.
211 Eum. 444.
212 See note, Eum. ad loc.
213 See edition of Eumenides, p. 78.
214 Supra, pp. 21, 65.
215 Supra, p. 142.
216 Laws, ix. ch. 12.
217 Schol. ad Eum. 444.
218 580 ff.
219 Infra, Bk. III.
220 Laws, ix. ch. 9.
221 Müller, Eum. p. 141.
222 Supra, p. 158.
223 612-616.
224 618-622.
225 32 ff.
226 Infra, p. 348 ff.
227 600 ff.
228 Sophocles, Oed. Rex, 95 ff.
229 Infra, p. 173.
230 Infra, p. 311. We do not attach any legal importance to Oedipus’ reference to parricide (1441). It would have ruined the dramatic plot if this word were mentioned earlier in the play.
231 Od. xi. 271 ff.
232 See Oed. Rex, 805 ff.
233 Oed. Rex, 1438.
234 Infra, Bk. III. ch. ii.
235 Soph. Oed. Col. 600, 770.
236 See Phoenissae, 60 ff., 1626; infra, p. 382.
237 1640 ff.
238 1245 ff.
239 1330 ff.
240 1155 ff.
241 Supra, p. 139.
242 495.
243 1010 ff.
244 1282 ff.
245 Supra, pp. 130, 158.
246 Anabasis, iv. 8. 25.
247 Laws, ix. ch. 8.
248 Ib. ch. 9.
249 Supra, p. 12.
250 See Müller, Dorians, i. 227.
251 Areopag., pp. 148-9.
252 Op. cit. p. 314 ff.
253 Eum. p. 123; supra, p. 112.
254 Eum. p. 92.
255 For conclusion see p. 213.
256 Supra, p. 143 ff.
257 See Lysias c. Agor. 40-42.
258 See 94 ff., 117 ff., 179 ff.
259 See Plato, Laws, ix. ch. 8, for greater and lesser purifications.
260 Op. cit. pp. 237-8.
261 Ib. p. 314 ff.
262 See Plato, Laws, ix. ch. 11 and ch. 12; Pollux, viii. 90; Arist. Ath. Pol. 57.
263 P. 428.
264 See infra, p. 181 ff.
265 C. Pantaen. 983, 20; also c. Nausimachum, 991.
266 Müller (Eum. p. 92) thinks this refers to manslaughter only.
267 C. Agor. 40-42.
268 Ib. 78.
269 Ib. 96-7.
270 Smith, Dict. Gk. Ant. s.v. φόνος, vol. ii. p. 385.
271 Eum. p. 92.
272 Infra, p. 205; see also p. 198.
273 Infra, p. 210.
274 We interpret the Greek words ἄφεσις and ἀφίημι as implying ‘release’ when blood-guilt is entirely remitted, as in the Demosthenic passages cited on page 176. Plato, however, obviously applies the terms to ‘partial release’ or forgiveness.
275 Laws, ix. ch. 9.
276 Ibid. ch. 8.
277 Eum. p. 93.
278 Infra, p. 186 ff.
279 Op. cit. pp. 319-321, 363-364, p. 377.
280 Dem. in Aristoc. 629-630; see also infra, p. 222.
281 See op. cit. pp. 377-8.
282 Op. cit. p. 373.
283 Plutarch, Solon, 18.
284 593.
285 ἀσεβείας γραφήν.
286 συνέβη.
287 Op. cit. p. 322.
288 Ib. pp. 314, 324, 372.
289 1-6, especially see 5 E.
290 C. Euerg. et Mnesib. 1161.
291 Supra, p. 143 ff.
292 Op. cit. p. 314.
293 Ib. p. 324.
294 1331 (Reiske).
295 Areop. pp. 148-9.
296 Op. cit. p. 315.
297 1154-1166.
298 Choeph. 3.
299 λάθρα γὰρ ἦλθεν, οὐ πιθὼν τοὺς κυρίους.
300 Op. cit. p. 315.
301 Eum. 317, 428, 496, 656 ff.
302 Infra, p. 340 ff.
303 991. Cf. also c. Pantaen. 983.
304 983 (Reiske).
305 Eum. p. 92.
306 Infra, p. 213.
307 See infra, p. 212 ff.
308 Supra, pp. 146, 178.
309 63 ff.
310 526-7.
311 iii. 44.
312 Glotz, op. cit. p. 465 ff.; Dem. in Arist. 640.
313 Laws, ix. 871E.
314 ὑπὲρ ὧν μὴ διδῷ φόνου δικασάσθαι.