Poine: a study in ancient Greek blood-vengeance

by Hubert Joseph Treston

If we accept the opinion of Coulanges[35] that the synoekism of Attica did not abolish the local prytanies and magistracies, it will be readily conceded that the Athenian city courts, that is, the Attic State courts, did not necessarily adjudicate in all cases of homicide. Owing to the civic and religious aspect of wilful murder and kin-slaying—crimes which involved the penalty of death or the confiscation of property—we may feel certain that the State courts had exclusive jurisdiction in such cases.[36] But we cannot be sure that the same principle applied to manslaughter and minor degrees of guilt, except when such deeds occurred between parties who had only one civic bond between them, namely, the political union of the State. Most frequently, we admit, the parties involved would be of such a kind. The rise of political democracy and of a new nobility of wealth led to the accumulation, in the cities of Attica, of a vast multitude of persons who did not belong to any of the old tribes or religious corporations.[37] The common worship of the clan, the phratry and the tribe did not receive their allegiance. Hence, probably, the courts of such organisations would not, even if they could, adjudicate in their case. But there survived in Attica, all through the historical era, families who still belonged to these more primitive groups. They were the old nobility, the country gentry, scattered over rural Attica,[38] who continued to obey and, where possible, to exercise the old jurisdictions of the clan, the phratry, and the tribe. We have shown that local tribal courts still functioned, with State-sanction, in historical Attica.[39] We have quoted a passage[40] from Plato which suggests that some such local courts had power to condemn to death a person who maliciously wounded one of his parents.

We agree with Müller[41] and Coulanges,[42] in opposition to Glotz[43] and Philippi,[44] in the view that Plato’s Laws are based, in the main, upon the Attic legal codes. There are certain points in which Platonic law seems independent of Attic law. Are these variations to be attributed to the fancy of an idealist or are they rather a supplement, an incorporation of local and tribal laws which the State codes did not mention but always presupposed? So far as homicide at least is concerned, we prefer the second alternative: and we shall give at a later stage the reasons for our preference.

In describing the trial of inanimate objects and of animals which were guilty of human bloodshed, Plato says[45]: ‘If a beast of burden or any other animal shall kill any person (except in a public contest) let the relatives (of the deceased) prosecute the cause of death: and let the wardens of rural areas (ἀγρόνομοι) upon whom ... the relatives shall impose this task, decide upon the matter: and let them destroy the animal (if) condemned and cast it beyond the boundaries (of the State). If any inanimate object deprives a person of life (except lightning or such god-sent bolt ...) either by the person falling upon it or by its falling upon the person, let the nearest of kin appoint the nearest neighbour to act as judge, and (thus) free from pollution himself and his whole kindred, and cast the condemned object beyond the boundaries.’ There is no mention of the Prytaneum Court or of the Tribe-Kings. We can explain the omission by supposing that Plato is referring to local courts and local cases of bloodshed, in which the relatives had not to go outside their immediate neighbourhood to obtain jurisdiction. The ancient phratry was an assembly of local clans: neighbourhood was the essential factor in the bond which the phratry religion represented. The ‘nearest neighbour’ in this quotation would have been a member of the phratry, if not of the clan, to which the slain person belonged. The duty of prosecution which is here referred to was no sham duty[46]; it was a serious religious obligation. Failure to prosecute would have ‘polluted’ the relatives of the slain.

So far there is no question of any human guilt. But such a question might have easily arisen. In the Hebrew murder-code,[47] if an ox gored a man to death, it was necessary to inquire whether the ox had been ‘let out’ by the owner, and whether the ox was previously ‘known to be dangerous.’ If so, the owner could have been put to death, unless he ransomed his life. Let us suppose, furthermore, that the object had not ‘fallen,’ but was such that it must have been ‘thrown.’ Two cases might now arise: (1) the ‘thrower’ might confess that he threw the object, say, a stone or a piece of wood, but at the same time deny that he threw it with the intention of hitting, much less, of killing, any person: or (2) the ‘thrower,’ guilty of intent to kill, might escape undetected, perhaps concealed by a wall or a boulder or a shrubbery, from which he had hurled the fatal missile. Thus, the trial of inanimate objects, and also, but to a less extent, the trial of animals, might have had a close connexion on the one hand with the question of accidental homicide, committed by a human agent, and on the other with the question of ‘murder by persons unknown.’ Upon the precise circumstances of each case would have depended the question whether local magistrates and tribunals would have possessed jurisdiction in the matter, or whether it would have had to be referred to the central State authority at Athens. But to this same authority would naturally also have fallen the decision as to the guilt of animals or objects which had caused the loss of human life within the city of Athens and its environs: and hence we can understand why the central Prytaneum court had to adjudicate not only upon guilty animals and inanimate objects, but also, and with much more serious possibilities, upon murder by persons unknown.

In the case of objects which could only have proved fatal if they were thrown by a human agent, a verdict of acquittal, in regard to such objects, would have logically involved a verdict of murder by persons unknown; for, if we suppose that the object was accidentally thrown, it is probable that the thrower would have come forward and established the blood-guilt of the object concurrently with his own innocence. Demosthenes[48] says in regard to the Prytaneum court: ‘If a stone or piece of wood or iron or anything of the kind falls upon and strikes a man and we are ignorant who it was that threw it, but know and have in our possession the instrument of death, proceedings are taken against such instruments here.’ Plato asserts that the objects mentioned were prosecuted by the relatives of the slain: but may we not also assume that a man who had thrown one of these objects without malicious intent, and who was accused of murder or manslaughter, would have lodged an accusation against the ‘object’ at the preliminary inquiry[49] before the King-Archon, that is, at the Prytaneum? If the Prytaneum found the object guilty, would not the verdict have prohibited any further proceedings? If, on the other hand, the object was clearly hurled by a human agent with malicious intent, and if the agent was unknown, proceedings, of a most formal kind, were taken against the unknown slayer.

Similar proceedings would of course be taken if there was no ‘object’ involved, as, for instance, in case of death by strangling. Such proceedings are thus described by Plato[50]: ‘If anyone,’ he says, ‘is found dead and the murderer is not known, and is not discovered by careful search-parties, let there be proclamation against the murderer as in other cases, and let the heir-at-law (i.e. the nearest relative of the deceased) proclaim in the market-place that the murderer, whoever he is, must not, since he is guilty of bloodshed, set foot in any sacred place in his native State or in that of his victim, or if he does, and he is discovered and identified, he shall be put to death and cast unburied beyond the boundaries.’ We have already pointed out[51] that the object and purpose of trials for homicide in Greece was not so much the establishment of guilt, as it is in modern States, but rather the establishment of innocence. Now, our last quotation from Plato suggests that a man who came to be suspected of homicide some time after the crime was committed, and who was never formally prosecuted and convicted, could, nevertheless, be put to death! But we shall see[52] that one refuge still remained to the ‘unfortunate wretch.’ He could have pleaded innocence, in the presence of the avengers, and this plea compelled ipso facto a recourse to trial: he could of course be arrested on the spot and imprisoned, but he could challenge a verdict at a court of summary jurisdiction, the prison court, known as ‘the Eleven,’[53] and if he proved his innocence to the satisfaction of more than four-fifths of his judges, his accuser paid a fine of one thousand drachmae! Thus, he could not be slain on the spot by the avengers if he pleaded innocence: but unless he proved that he was innocent he was ultimately put to death.

Aristotle may be taken to suggest that there was no essential connexion between the trial of inanimate objects and the verdict of murder against a person unknown. He says[54]: ‘if the name of the homicide is unknown, the indictment is prosecuted in general terms against the unknown author’; but in the next line he adds: ‘The King-Archon and the Tribe-Kings have competence in indictments against lifeless objects and the brute creation.’ The juxtaposition of such references is sufficiently significant. Pollux[55] is more definite: ‘The Prytaneum court,’ he says, ‘adjudicates concerning slayers if they are unknown, and also concerning lifeless objects that have fallen and caused death.’

Though none of these authorities say anything to support, neither do they say anything which refutes, our opinion that the Prytaneum court could also try cases of ‘accidental’ slaying in which a person accused of manslaughter pleaded an entire absence of neglect[56] or passion or intent. Our view is however rendered probable by the fact that preliminary inquiries in homicide cases were made in this place which, in addition to being a court, was also the official residence of the King-Archon and of the Prytaneis[57]; but the most cogent argument in favour of our hypothesis is to be found in the first two lines of the Draconian inscription if our interpretation of these lines is correct. We fail to see how the Draconian reference to ‘kings’ as ‘the judges’ in cases of homicide committed ‘without intent’[58] can be otherwise satisfactorily explained.

If it be objected that pleas of ‘accidental’ homicide were regularly tried at the Palladium court,[59] we may reply that the proper function of this court was subsidiary or supplemental to that of the Prytaneum. In the Palladium the accused in his plea denied, indeed, any guilt, but he would have found it difficult to prove his innocence unless he could transfer the guilt to another person. In the Prytaneum, as we conceive it, he had often an opportunity of laying the blame upon an inanimate instrument of death. Such a plea of accidental slaying involved no question of human guilt, as the accusation was centred upon an inanimate ‘object.’ Again, whenever the plea of the accused differed from the charge of the accuser, it was the duty of the King-Archon to decide on the probabilities of the case, before he relegated the trial to its appropriate court.[60] If, then, a person accused of murder or manslaughter could advance a plea of accidental homicide by accusing an inanimate object, the Prytaneum court adjoining the official residence of the King and the Prytaneis would have been at the immediate disposal of the defendant. No long period of time, such as ordinarily had to elapse between formal accusations and homicide trials, preceded the trials at the Prytaneum; and we may infer from Plato’s account that the verdict of ‘death by persons unknown’ was normally brought in by the Prytaneum court before any formal proclamation of the unknown murderer was made by the relatives of the slain.