[147] As to the restless wandering of the βιαιοθάνατοι more details will be given below [[Append. vii]]. In the meantime it will be enough to refer to A., Eum. 98, where the still unavenged soul of the murdered Klytaimnestra complains αἰσχρῶς ἀλῶμαι. A later authority uses words that correspond well with ancient belief: Porph., Abst. ii, 47, τῶν ἀνθρώπων αἱ τῶν βίᾳ ἀποθανόντων (ψυχαὶ) κατέχονται πρὸς τῷ σώματι, like the souls of the ἄταφοι.
[148] In Homeric times the injured dead becomes a θεῶν μήνιμα to the evil-doer (X 358, λ 73). Later times believed that the soul of the dead man himself angrily pursued the murderer with its terrors till it drove him beyond its own boundaries: ὁ θανατωθεὶς θυμοῦται τῷ δράσαντι κτλ., Pl., Lg. 865 DE, appealing to παλαιόν τινα τῶν ἀρχαίων μύθων λεγόμενον; cf. X., Cyr. 8, 7, 18: A., Cho. 39 ff., 323 ff. If the next-of-kin whose duty it is to avenge the death of his relative shirks the duty incumbent on him the anger of the dead man is turned upon the latter: Pl., Leg. 9, 866 B—τοῦ παθόντος προστρεπομένου τὴν πάθην. The indignant soul becomes προστρόπαιος. προστρόπαιος probably [211] applies only in a derivative sense to a δαίμων who takes the part of the dead man (esp. Ζεὺς προστρόπαιος); it is strictly speaking an epithet of the soul itself in its longing for vengeance. Thus in Antiphon Tetral. 1, γ 10, ἡμῖν μὲν προστρόπαιος ὁ ἀποθανὼν οὐκ ἔσται. 3, δ 10, ὁ ἀποκτείνας (or rather ὁ τεθνηκὼς) τοῖς αἰτίοις προστρόπαιος ἔσται. So, too, A., Cho. 287, ἐκ προστροπαίων ἐν γένει πεπτωκότων. EM. 42, 7, Ἠριγόνην, ἀναρτήσασαν ἑαυτήν, προστρόπαιον τοῖς Ἀθηναίοις γενέσθαι. We can, however, see particularly well from this case how easily the change came about from a soul in a special condition to a similar daimonic being which takes the place of the soul of the dead. The same Antiphon speaks also of οἱ τῶν ἀποθανόντων προστρόπαιοι, ὁ προστρόπαιος τοῦ ἀποθανόντος as something distinct from the dead man himself: Tetr. 3, α 4; 3, β 8; cf. ὁ Μυρτίλου προστρόπαιος, Paus. 2, 18, 2, etc.; cf. Zacher, Dissert. phil. Halens., iii, p. 228. The injured dead himself becomes ἀραῖος, Soph., Tr. 1201 ff. (cf. fr. 367; E., IT. 778; Med. 608); later his place is taken by δαίμονες ἀραῖοι. What terrible evils the unavenged soul can bring upon the person who is called upon to take vengeance are painted for us by Aesch. in Cho. 278 ff. (or else as some think an ancient interpolator of A.). Sickness and trouble might be sent over several generations by such παλαιὰ μηνίματα of the dead: Pl., Phdr. 244 D (see Lobeck’s account, Agl. 636 f.). True to ancient beliefs an Orphic hymn prays to the Titanes μῆνιν χαλεπὴν ἀποπέμπειν, εἴ τις ἀπὸ χθονίων προγόνων οἴκοισι πελάσθη, H. 37, 7 f.; cf. 39, 9–10.
[149] χρεών ἐστιν ὑπεξελθεῖν τῷ παθόντι τὸν δράσαντα τὰς ὥρας πάσας τοῦ ἐνιαυτοῦ, καὶ ἐρημῶσαι πάντας τοὺς οἰκείους τόπους ξυμπάσης τῆς πατρίδος, Pl., Lg. ix, 865 E. The law says in the case of the criminal convicted of murder εἴργειν μὲν τῆς τοῦ παθόντος πατρίδος, κτείνειν δὲ οὐχ ὅσιον ἁπανταχοῦ, D. 23, 38.
[150] When the victim was a citizen, and also in wilful murder of a non-citizen. See Mei. and Sch., Att. Proc.2, p. 379, n. 520.—When the citizenship of a city rested upon conquest the lives of the subjects belonging to the older subject population were of less account. In Tralles (Karia) the murder of one of the Leleges by an (Argive) full citizen might be bought off by payment of a bushel of peas (a purely symbolical ποινή) to the relations of the victim: Plu., Q.Gr. 46, p. 302 B.
[151] On the expiry of the legally appointed period of banishment the relations of the dead man do not seem to have been allowed to refuse αἴδεσις. See Philippi, Areop. u. Epheten, 115 f.
[152] Law ap. D. 43, 57.
[153] D. 37, 59. See Philippi, op. cit., p. 144 ff. Cf. E., Hipp. 1435 f., 1442 f., 1448 f.
[154] Such prohibition against taking a ποινή for murder is made by the Law ap. D. 23, 28: τοὺς δ’ ἀνδροφόνους ἐξεῖναι ἀποκτείνειν . . . λυμαίνεσθαι δὲ μή, μηδὲ ἀποινᾶν (cf. § 33 τὸ δὲ μηδ’ ἀποινᾶν· μὴ χρήματα πράττειν, τὰ γὰρ χρήματα ἄποινα ὠνόμαζον οἱ παλαιοί). In spite of this Meier and others unjustifiably conclude that murder could be indemnified by payment of money, from the illegal practice mentioned in [D.] 58, 29: this speaks rather for the contrary. They have more appearance of justification when they appeal to Harp. (Phot. Suid., E.M. 784, 26; AB. 313, 5 ff.), s.v. ὑποφόνια· τὰ ἐπὶ φόνῳ διδόμενα χρήματα τοῖς οἰκείοις τοῦ φονευθέντος, ἵνα μὴ ἐπεξίωσιν. On the strength of this Hermann, Gr. Staatsalt.5 104, 6, says, “even intentional murder could be absolutely indemnified.” Nothing is actually said of φόνος ἑκούσιος here nor do we anywhere learn that the payment of ὑποφόνια [212] on the occasion of a murder was ever a formally legalized proceeding. It remains possible, and even in the circumstances more probable, that Dinarch. and Thphr. in the passages on ὑποφόνια quoted by Harp. referred to the practice as one forbidden by law, though it might be, on occasion, an actual fact. If we had only the gloss of Suidas—ἄποινα· λύτρα, ἃ δίδωσί τις ὑπὲρ φόνου ἢ σώματος. οὕτως Σόλων ἐν νόμοις—we might have concluded that payment of such blood-money was allowed in Athens and mentioned in Solon’s laws as allowable. This would be quite as justifiable as to argue as above from Harp. s. ὑποφόνια. We know, in fact, that the law referred to the ἄποινα and ἀποινᾶν as forbidden things, from the passages already quoted from Dem. (23, 28–33). From these the gloss was itself probably derived.
[155] We cannot, however, believe on the poor authority of Sch. Dem. p. 607, 16 ff., that the ἱεροποιοὶ ταῖς Σεμναῖς θεαῖς were selected out of the whole Athenian citizen body by the Areiopagos. (“Three” were chosen out of all the Athenians: D. 21, 115; at other times “ten”: Dinarch. ap. EM. 469, 12 ff.; an indefinite number: Phot. ἱεροποιοί.) According to all analogies we should rather expect this selection to have been made by the popular Assembly.
[156] αἱ διωμοσίαι καὶ τὰ τόμια, Antiphon, Herod. 88. In more detail D. 23, 67–8. Those who had to take an oath swore by the Σεμναὶ θεαί and other gods: Dinarch., adv. Demosth. 47. Both sides had to swear to the justice of their case in respect of the material facts in dispute (Philippi, Areop., pp. 87–95). Such a compulsory oath taken by both parties could not of course in any circumstances serve as proof: one side at least must be perjured. Nor can the Athenians themselves have failed to see this. It is surely doing them an injustice not to see the simple explanation of this strange sort of preliminary oath-taking and to dismiss the matter with a reference to the Athenians as “not a legally-minded people” (as Philippi does, p. 88). It is much more natural to suppose that this double oath, taken under circumstances of peculiar solemnity, was not regarded as a juridical matter at all, but had a purely religious sense (as it had in the quite similar cases mentioned by Meiners, Allg. Gesch. d. Relig. ii, 296 f.). The oath-taker invokes a dreadful curse upon himself if he breaks his oath and devotes αὑτὸν καὶ γένος καὶ οἰκίαν τὴν αὑτοῦ (Antiphon, Herod. 11) to the Curse-Goddesses, the Ἀραί or the Ἐρινύες αἵ θ’ ὑπὸ γαῖαν ἀνθρώπους τίνυνται, ὅτις κ’ ἐπίορκον ὀμόσσῃ (Τ 259 f.)—and to the Gods who are to punish his children and his whole kith and kin on earth (Lycurg., Leocr. 79). If the court discovers the perjured party the punishment due to his action overtakes him (or if he is the plaintiff, he fails in his purpose) and at the same time the justice of heaven punishes him for his broken oath (cf. D. 23, 68). But the court may make a mistake and not find out the perjurer; in which case the perjurer is still punished for he becomes a victim of the gods to whom he has devoted himself—who do not err. Thus the double oath is an addition to the judicial inquiry, and heavenly punishment stands side by side with that of men. The two may coincide, but this need not be so, and in this way the guilty is punished whatever happens. (How familiar such ideas were in antiquity we see from expressions used by orators: Isoc. 18, 3; D. 19, 239–40; Lycurg., Leocr. 79.) The oath, being an appeal to a higher court, supplemented human justice, or rather the legal processes of men supplemented the oath-taking, for in this partnership the appeal to an oath must have been the older member. [213]