§ 5. Limitations Of Liability For Bloodshed.
All within the ἀγχιστεία were liable.
The ἀγχιστεία, limited to relations within the same degrees as for other purposes, seems to be the unit in the case of pollution of the kindred by the death—violent or natural—of one of their number.
“Whosoever[173] being related to the deceased on the male or female side of those within the cousinship (ἐντὸς ἀνεψιότητος), shall not prosecute the murderer when he ought and proclaim him outlaw, he shall take upon himself the pollution and the hatred of the gods ... and he shall be in the power of any who is willing to avenge the dead....”[174]
“The pollution cannot be washed out until the homicidal soul which did the deed has given life for life and has propitiated and laid to sleep the wrath of the whole family” (ξυγγένεια).[175]
“If a brother wound a brother (ὁμόγονος) the parents (γεννῆται) and the kinsmen (συγγενεῖς) to cousins' children on male and female side shall meet and judge the case.”[176]
Ransom was forbidden; citizen was bound to citizen with ties that had inherited too much of the tribal sanctity to admit of any extenuation of the extreme penalty.
It was no doubt a wise policy on the part of the legislators, with the view to the preservation of respect for life and property, to make the responsibility for murder rest as widely as possible, and include as many relations and connections on both sides as might be. In order also that the wife, in case her husband was killed, and the daughter, in case her father was killed, might be fully protected and represented [pg 076] among the prosecuting kindred, the law of Draco seems to lay the necessity for action also on the father-in-law and the son-in-law. The phratria, being such a compact organisation and exacting such formal admission of its members, would naturally be concerned to see that justice was dealt to any of its number. Though we cannot include the phratores amongst those directly responsible equally with the near kinsmen for crimes committed by one of their number, they would always have to take a certain part in whatever was necessary to bring him to justice, besides being generally concerned in all matters relating to kinship, which affected any member of their phratria.
The Law of Draco.
“Proclamation shall be made against the murderer in the agora within [? his] cousinship and (the degree) of a first cousin, and prosecution shall be made jointly by cousins and cousins' children and descendants of cousins, and sons-in-law and fathers-in-law and phratores.”
That Demosthenes here quotes a genuine law of Draco is proved by an inscription found at Athens belonging to the year 409 B.C., recording this sentence as part of the law of Draco about murder.[177]
In another place Demosthenes thus refers to the action of this law:—
“The law commands the relations to go forth and [pg 077] prosecute as far as descendants of cousins; and in the oath it is defined what the relationship actually is, etc.”[178]
The use of ἀνεψιαδοῖ in addition to ἀνεψιῶν παῖδες in Draco's law above is emphatic as implying that as regards pollution the group of relations to second cousins were treated en masse as under the stain; they had not yet, so to speak, reached the point where they could divide up their responsibility.
The case of murder within the ἀγχιστεία.
If the murder was committed within the narrow limits of the ἀγχιστεία itself, the double pollution of the bloodspilling and the blood spilled rested upon the whole group with overwhelming force.
Plato[179] treats of such a calamity and prescribes the remedy. If a man slay his wife, or she her husband, his children are orphans; their debt of maintenance to their parent is cancelled; he must flee; they possess his goods. If he is childless, his relations shall meet to the children of his cousins on the male and female side (i.e. all his possible heirs) and shall elect not one of themselves, but a younger son of some other and pious family to bring in new blood with better fortune to counteract the curse, as heir to the house (κληρονόμος εἰς τὸν οἶκον), introducing him to the father of the banished (or deceased) man and to those further back in the family (τοῖς ἄνω τοῦ γένους), calling him their son, the continuer of their family (γεννήτωρ), their hearth-keeper [pg 078] (ἑστιοῦχος), and minister of their sacred rites.... But the guilty man they shall “let lie,” nameless, childless, portionless for ever.[180]
The blood-fine or galanas in Wales.
In the ancient Laws of Wales the blood-fine takes a very important position. But whereas all the relations of the murderer are liable to be called upon to pay the “Spearpenny,” as it is called, only the inner kindred within fixed degrees contribute proportionally to the payment of the price. The group upon which this responsibility falls is twice as large in the Welsh Laws as at Athens, and includes fifth cousins, or the greatgrandchildren of greatgrandchildren of a common ancestor.
The Dimetian Code describes the relations who pay galanas as follows.[181] Those beyond only pay “spearpenny.”
| Father and mother. | |
|---|---|
| Grandfather. | |
| Greatgrandfather. | |
| Brother and sister. | |
| First cousins. | |
| Second cousins. | |
| Third cousins. | |
| Fourth cousins. | |
| Fifth cousins. |
According to the Gwentian Code, fifth cousins share. “There is no proper share, no proper name in kin further than that.”[182]
The Venedotian Code states that galanas is paid by the kindred: two parts by the relations of the father, one part by the relations of the mother, to sixth cousins. All kindred after sixth cousins pay spearpenny.[183]
The sixth cousin is also called “kinsman son of a fifth cousin, and then the father (i.e. the fifth cousin) pays it, because his relationship can be fixed, but the relationship of his son to the murderer cannot.”
Defilement rested upon the group of kinsmen.
The defilement of carrying out a corpse and assisting at a funeral also covered the same area of relationship at Athens—i.e. the ἀγχιστεία. The house of the dead man was only to be entered by those naturally polluted.
“After the funeral no woman to enter the house save only those defiled; to wit—mother, wife, sisters, and daughters; beside these not more than five women and two girls, daughters of first cousins: beyond these, none.”[184]
Demosthenes quotes the law of Solon to the effect that—
“No woman under sixty years old to enter the house or follow the corpse except those within ἀνεψιαδοῖ (πλὴν ὅσαι ἐντὸς ἀνεψιαδῶν εἰσιν): no woman at all may enter the house after the carrying out of the corpse except those within ἀνεψιαδοῖ.”[185]
All those near of kin assist in the funeral.
The payment of the blood-fine by the whole family of the murderer was considered necessary to [pg 080] allay the vengeance and anger of the family of the murdered man within the same area of relationship. In Wales the members of the family who received the galanas, did so in proportion to the importance of their position in the transmission of the kindred blood, according to a classification identical with their proximity in relationship to the dead man, and their expectation of inheritance from him or succession to his place.
The mother's relations included in Greece and in Wales.
The inclusion of the mother's relatives and their liability in these circumstances, in addition to the paternal relations, follow naturally enough in Wales as in Greece when once the transmission of inheritance through a woman, in default of male heirs, had become a recognised possibility. A woman's sons might always be called upon under certain circumstances to take inheritance from her father or next of kin. They therefore quite fairly shared in the claims as well as the privileges of their position. And vice versa, in exchange for the priceless guarantee of continuity provided by a woman's offspring to her relations, they too would be prepared to undergo a part of the penalties incurred by any of those who might rank some day as their next of kin, or as their sons.
This view of the source of their recognition as members of the kindred responsible for the blood-fine in Wales is confirmed by a statement in the Venedotian Code.[186] Those women and clerks who can swear that they will never have children, and so are useless for the preservation of continuity in the [pg 081] families to which they belong, are specially exempted from contribution to the galanas, inasmuch as they have forsworn the privilege of attaining through posterity a share in the immortality on earth of their kindred.