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 passage[303]: ‘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] Müller[305] 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 referred[308] 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.