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]