Chapter XIV: Section II: Religious and Legal Transitions (2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WERGELD AND PRIVATE SETTLEMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ἥκω γὰρ ἐς γῆν τήνδε καὶ κατέρχομαι.

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

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

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

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

Indignor quandoque bonus dormitat Homerus.