Philippi[14] finds the reference to ‘the kings’ in this inscription rather difficult to explain. He thinks that the allusion can only be to archons, but he feels also that ‘it seems inadmissible to assume collegiate functioning after the archonship became annual.’ He therefore views with sympathy the extraordinary suggestion of Köhler, that τὸς βασιλέας means τοὺς ἀεὶ βασιλεύοντας, that ‘the kings’ are ‘those who from time to time held the office of king-archon.’ The solution of this, as of other difficulties in the inscription, is, we believe, to be found in a correct analysis of the word ἄκων, which means ‘involuntarily’ or without intent.
Let us suppose that a man A caused the death of another man B. Obviously this event could occur either (1) in an accidental manner, without the least possible foresight or culpable neglect, as for instance in a wrestling-match or in a javelin-throwing competition: or (2) in circumstances which implied a certain amount of culpable neglect, or ἀφυλαξία, because the slayer did not take the usual or the necessary precautions—as, for instance, if a drug was administered, in illness, to B, and A did not see to it that the drug was of the proper kind: or (3) in a manner which involved a certain amount of intent or deliberation, though not necessarily ‘malice aforethought,’ on the part of the slayer, as, for instance, if A struck B in a drunken bout, or in a sudden fit of anger, jealousy or revenge. Plato,[15] in the Laws, makes the clearest possible distinction between these cases, and so does Antiphon[16] in his Tetralogies. But the Greek words ἄκων and ἀκούσιος were applied indiscriminately to all three cases!
The Greeks of historical times actually put on trial inanimate objects which had slain a man. Why? Was it because these objects were regarded as polluted and it was necessary to discover the extent of the pollution? We do not think so, for such objects were either polluted or they were not. There could have been no question of degrees of pollution. The purpose of such a trial was rather, we think, to inquire whether the objects were guilty or not. But why was this question of such importance? Clearly because there was a human, as distinct from a divine, interest in such trials. We suggest that these trials were instituted primarily in order to establish the innocence of an accused man. In Greek law, unlike modern law, it was necessary for a man to prove his innocence. He could only do this, very often, by proving that somebody else, or something else, was guilty. We do not agree with Müller[17] and Philippi[18] in regarding these trials (δικαὶ ἀψύχων) as sham trials. Presided over by five ‘kings,’ as Aristotle[19] assures us that they were, they cannot have been so altogether meaningless and absurd. They were, we think, almost as important as a modern Coroner’s inquest. Now, who, we may ask, were the five ‘kings’ who sat at the Prytaneum ‘murder’ court in the time of Aristotle? They were, simply, the King-Archon, and the four Phylobasileis, or Tribe-Kings, who still survived as the religious and judicial representatives of the old Ionian tribes of Attica. These kings are therefore the aristocratic descendants of the Elders who ‘sat on smooth stones in a sacred circle,’ in the Pelasgian Age.[20] The Prytaneum, as Glotz[21] points out, was the oldest court at Athens. Coulanges[22] connects this court with the worship of the ancestral-hearth; it was, he thinks, the divine ‘hearth-stone’ of the nation, the source of its vitality, the symbol of its immortality. Yet this court Müller and Philippi regard as a mock or sham-court, in which a number of respectable but unintelligent nobles persisted in upholding the obsolete traditions of a ridiculous past!
We believe that ‘the kings’ of the Prytaneum Court are identical with ‘the kings’ of our Draconian inscription. The first two lines of the fragment refer, in our view, to accidental slaying, in which there was no degree of guilt attaching to the human agent, but in which it was necessary to prove that the guilt was attached to an animal or an inanimate object. We think it quite probable that such cases were tried at the Prytaneum.[23] We may go so far as to say that such cases were the raison d’être of the survival and the historical importance of such a court.[24] The legislator, in our inscription, says: ‘If a man slays another without intent, let him be put on trial, let “the kings” judge of the causes of death’ (δικάζειν αἰτιῶν φόνου).
We shall discuss[25] later the function of the Ephetae judges who are mentioned in this inscription as collaborating with the kings in the judicial investigation of homicide-guilt, and we shall suggest an explanation of the fact that they were invariably fifty-one in number.[26] In regard to the adverb ἄριστίνδην, which means, in general, ‘according to excellence,’ we agree with Philippi[27] that in the context it refers to birth rather than to social rank. The selection of the phrateres would probably have been made from ‘brethren’ who were not kinsmen of the slayer, but merely related by ties of ‘affinity’ or of local contiguity with him. Plato[28] suggests that in certain cases of homicide the judges of guilt (and probably therefore of atonement) should not be akin to the criminal. The fact that the father and the brothers (we assume that the singular form ἀδελφός includes all the brothers) and the sons of the slain could, if unanimous, have accepted ‘appeasement’ and have legalised the manslayer’s return from exile, shows how far from, and yet how near to, the wergeld customs of Pelasgian days were the historical murder laws of Greece. Yet here we have not wergeld proper, but only a survival, a reflection, of its ancient vigour. Nothing could show more clearly than this law does the validity of our theory[29] which finds in a ‘compromise’ between different forces the origin of the historical homicide-code of Greece.
Glotz[30] holds that the objection of a single relative to ‘appeasement’ could neutralise the will of the other kinsmen because, if he were obdurate, he could prevent the unanimity which was required by law for such return. But we shall argue, later,[31] that while the relatives had considerable legal powers if they were unanimous, they were probably subject to superior control if they disagreed. It is difficult to suppose that one bitter enemy amongst the relatives of the slain could, in practice, have imposed a penalty of perpetual exile for manslaughter.
We have discussed[32] the theory of Glotz that ‘private settlement’ was legal, even for wilful murder. How can Glotz reconcile such a theory with this Draconian law which provided for[33] a trial and a verdict even in cases of accidental slaying? According to our interpretation of the restored inscription, the relatives of the slain may not always agree, but the kings and the Ephetae must adjudicate in each case.
Glotz suggests,[34] further, that Dracon first introduced the distinction between murder and manslaughter. Is this the view which is suggested prima facie by the restored inscription? To us it seems quite obvious that the inscription assumes, as a familiar fact, an already existing distinction, not merely between murder and manslaughter, but also between manslaughter and accidental slaying. If the distinction appeared as a legal innovation in the Draconian legislation, surely such a distinction would have received some emphasis, since it would have been necessary to enlighten an uncivilised public opinion; surely the definitions of the various kinds of homicide would have been more clearly marked and the penalties more clearly indicated.
Since the Draconian inscription has been restored from quotations in Demosthenic speeches, we shall turn to those speeches for a more complete account of Attic homicide law. But the Demosthenic references must be supplemented from other sources—especially from Plato’s penal code.