Poine: a study in ancient Greek blood-vengeance

by Hubert Joseph Treston

Involuntary Homicide

In regard to pleas and charges of manslaughter, we hope to show that there is a very substantial agreement amongst the ancient authorities. Once more[61] we must call attention to the possibility of local as distinct from central jurisdiction. Demosthenes[62] quotes a law of Dracon relating to the ‘appeasement’ of the relatives of the slain, which is practically identical with the law which we have quoted from the restored inscription. ‘Proclamation to (or against) the slayer shall be made in the market-place (by all relatives of deceased) within the degrees of cousinship and by cousins; in the prosecution there shall act jointly with these, the sons of cousins, the sons-in-law (γαμβρούς) and the fathers-in-law (πενθερούς), the cousins-in-law, the sons of such cousins and the phrateres. If “appeasement” is prescribed (δέῃ), if there is a father or (and) brother(s) or (and) sons, let all (these) be appeased or let one objector hold the field: if there are none of these, and (the accused) slays involuntarily, and the Fifty-one, the Ephetae, decide that he slew involuntarily, let ten phrateres decide about appeasement, if (all) consent. These let the Fifty-one choose according to birth (or merit).’ We give below[63] the Greek version of the latter portion of the law, so that it may be the more easily compared with the corresponding portion of the Draconian inscription. In this inscription, there are two lines which are not found in Demosthenes, namely those which refer to the rôle of the ‘cousins’ in accepting ‘appeasement.’ We must not, however, conclude that the cousins had ceased to have a voice in ‘appeasement’ in the time of Demosthenes, or from the year 403/2 B.C. onwards, or in Solon’s time. We are convinced that the omission is due either to the negligence of a scribe or to the deliberate excision by Demosthenes of unnecessary elements of law in a legal quotation which included extracts from different laws, most of which are only remotely relevant to his main purpose in the speech. It would be absurd to suppose that a legal innovator jumped from the ‘small family’ to the neighbour-brethren (phrateres) and ignored the cousins in an enactment involving the transfer of property which constituted ‘appeasement.’ Surely if any change were made in the personnel of the recipients, the ‘neighbours’ would have been first omitted. And we cannot suppose that cousins had become obsolete since Dracon’s time!

The formal proclamation of a charge of manslaughter against the accused was the initial act of the ‘prosecution’ which, after a period of inquiry, after examination of witnesses, and after various other formalities, ultimately culminated in the formal trial of the accused at the Palladium court. But, as it stands, this quotation from Demosthenes suggests, prima facie, that trial could be dispensed with if the deceased had near relations who unanimously consented to accept ‘appeasement’: and that it was only in the absence of relatives that a trial took place, after which the phrateres, who were merely neighbours, negotiated the appeasement. But this prima facie inference arises from the clumsy and unscientific wording of the law. That the inference is logically invalid is obvious from the simple fact that, in the absence of relatives of the deceased, the slayer could not be tried at all! When the law says ‘if there are none of these,’ it must be taken to mean ‘if none of the groups which are privileged to decide about appeasement can be brought to unanimity.’

It is an extraordinary thing, that in this Demosthenic citation of the law relating to manslaughter there is no certain reference to the penalty of exile. Are we to assume that such a penalty was not legally compulsory, that it was merely a fortuitous eventuality which depended entirely on the attitude of the relatives to ‘appeasement’? Are we to suppose that if all the relatives concerned agreed to be ‘appeased’ immediately after the trial and the verdict, the manslayer could have remained at home precisely as in the old wergeld days? We have no doubt that so far as the relatives of the slain were concerned, he could have remained at home. But could he have been admitted to purgation? Was he not ‘polluted’ if the dying man did not ‘release’ him? Could he have ignored the anger of the gods and of the slain? The laws of Dracon do not directly assist us in answering these questions: on the contrary, by their obscure wording they suggest frequently the wrong answer. But we have seen[64] that these laws can only be explained as a ‘compromise.’ In the wergeld system of tribal Greek societies in pre-historic days, there was a regular and scientific method of ‘appeasement’ which, in most kinds of homicide, was recognised as a solvent of the feud. But in the Draconian code ‘appeasement’ appears in a degenerate and insignificant aspect. It is subordinated to other penalties which are not stated with any degree of emphasis, for the simple reason that they were universally familiar. All the arguments which we have put forward in support of our theory of a ‘compromise’ in Attic law compel us to assume that exile was an essential ingredient of the penalty for manslaughter. Such an assumption is implied in the reading ἐσέσθων (let them permit to return) occurring in the Draconian inscription. Demosthenes, unfortunately, has αἰδεσάσθων, which refers merely to ‘appeasement.’ As we should have expected, Glotz[65] and Müller[66] interpret this Demosthenic reference as if it were a logical scientific document: and they accept the prima facie inference that a person accused of manslaughter could, as soon as he was publicly proclaimed and banned from all public and religious intercourse, avoid the ordeal of a trial and the punishment of exile by simply taking some money with him to the house of the father, brother and sons of deceased; if he succeeded in securing a ‘settlement’ and procured a ‘legal release,’ he could have quietly resumed his ordinary occupations! This interpretation, which we have already rejected,[67] is inconsistent with other passages in Demosthenes and in Plato which we shall now discuss. While we admit that this law of Dracon does not, unfortunately, mention the exile penalty for manslaughter as an obvious and incontrovertible fact, yet we insist that it does mention trial as a normal concomitant. The Ephetae are there, first and last. The Ephetae must decide the degree of guilt: they must decide that the slayer slew involuntarily: they must in the absence of relatives or in the event of their disagreement select the ‘phrateres’ according to birth or merit. This at least is very different from ‘private settlement.’

Demosthenes[68] quotes another law of Dracon regarding manslaughter, as follows: ‘If anyone shall pursue or plunder beyond the civic boundary any of those slayers who have gone into exile and whose property is not confiscate to the State, he shall incur the same penalty as if he did so inside our boundaries’ (ἐν τῇ ἡμεδαπῇ). Fortunately we possess Demosthenes’ explanation of this law which, because of its peculiar expression, requires some such explanation. The word ἐπίτιμα, in reference to property, is opposed to ἄτιμα and means ‘not confiscated.’ Hence, the phrase ‘Slayers whose property is not confiscated’ must refer, says the orator, to ‘involuntary slayers,’ because the property of wilful murderers is confiscated to the State. Thus this Draconian law, instead of employing the adjective ‘involuntary’ (ἀκούσιος) as a predicate of ‘slayers,’ uses two clauses to describe what a single adjective would have described. Are these two clauses, then, to be regarded as definitive; as concerned with qualities which normally and universally characterised involuntary slayers? Are involuntary homicides, as a class, defined as ‘those manslayers who have gone into exile and whose property is State-guaranteed’ (ἐπίτιμα)? Or are we rather to suppose that there were two classes of involuntary homicides, and that this law refers to only one of these classes—that in some cases, as Glotz and Müller conceive the matter, the slayer bribed the relatives of the slain, and avoided all further trouble; and, in other cases, he went into exile? In our opinion this quotation suggests that all involuntary slayers went into exile for a period of time. Müller holds[69] that the duration of this period of exile was not fixed by any law: that the slayer remained in exile until such time as the relatives accepted ‘appeasement.’ We shall discuss this opinion more fully later, but we may say here that it seems very strange that the State should have guaranteed protection for the property of the slayer, and should, at the same time, have had no voice in determining the limits of his period of exile, no influence in constraining the relatives of the slain to accept ‘appeasement.’

Speaking of involuntary homicide, in another passage, Demosthenes says[70]: ‘If 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[71] of the relatives of the slain (τινα τῶν ἐν γένει τοῦ πεπονθότος): then it permits him to return, not anyhow, but in a particular manner, ordering him to sacrifice and be “purged” and giving other directions which he must carry out. Rightly, men of Athens, does the law prescribe all this. It is just to make the penalty of involuntary homicide less than voluntary, and it is right to prescribe exile guaranteeing (a person) a secure exodus, and for the returning exile to free himself from tabu and be cleansed by customary rites; above all it is right that the laws should control everybody and everything.’ In this passage we find the usual obscurity of language and even apparent discrepancies.

Is it suggested that if the manslayer is not accused and convicted, the law has no control over him? Glotz and Müller would find in such quotations a proof of their theory of the legality of ‘private settlement.’ But it is absurd to examine as it were microscopically such passages as this. They must be interpreted, as far as possible, in the light of other parallel references, and accepted or rejected according to the criterion of consistency. We admit of course that Demosthenes is not always consistent; he was essentially an orator, and as an orator he placed rhetoric before logic, persuasion before truth. But in legal quotations he had to respect the legal knowledge of his audience. Hence such quotations contain of necessity an important element of truth. In the passage which we have just cited there is an apparent discrepancy which militates somewhat against its logical value. We may ask: ‘How can the law be said to be master of everybody and everything if it guarantees to the relatives of the slain the right to refuse “appeasement,” even if there be only one dissentient?’ A law of Dracon prescribed that ‘all must agree or let one objector hold the field.’ Was not this objector, then, κύριος τοῦ ἀνδροφόνου? What control had the law over such an objector? On the very face of it, therefore, this statement of Demosthenes seems inconsistent with itself! But perhaps Plato will help us to solve the problem.

We have already[72] quoted Plato’s account of the penalty for manslaughter. The legend, which he mentions, ‘of priests of old’ concerning the temporary anger of the dead shows the religious significance which the exile penalty possessed for Plato: he understood the meaning of the ‘customary rites’ of cleansing and purgation which the manslayer had to perform on his return. In his penal code, Plato differentiates between different degrees of guilt in involuntary homicide: and it is significant that the penalties vary correspondingly—not in the extent of the ‘appeasement,’ but in the duration of the period of exile. Thus he says[73]: ‘If anyone kills a freeman in a passion, let him be of necessity an exile for two years.’ In this case there is an element of guilt, but there is no deliberation or intent to kill. He goes on to say: ‘He who in a passion but with a certain degree of intent (μετ’ ἐπιβουλῆς) slays a person, ... let him be an exile for three years ... being punished during a longer period because of the greater seriousness of his passion.’ ‘It is difficult,’ he continues, ‘to give laws on such matters with accuracy. Of all such matters, therefore, it is right for the guardians of the laws to have cognisance: and when the period of the exile shall have expired for each offender, it is right to send twelve judges to the civic boundaries who having considered still more clearly meanwhile the condition (or conduct—πραξεῖς) of the exiles, will be the final arbiters (δικαστάς) of the “appeasement” and their return home from exile: and let them abide by the decisions of these magistrates; and if, after returning from exile, anyone of these commits again the same offence, let him be exiled and never return: if he returns let him suffer in the same way as if a stranger returns’ (κατὰ τὴν τοῦ ξένου ἄφιξιν). Here we have a very different picture from that which the theories of Glotz and Müller and some Demosthenic passages suggest. There is question of manslaughter, but there is no reference to the power of wrangling relatives to prevent the exile’s return. On the contrary, it is stated that the ‘appeasement’ was controlled by judges who may have been phrateres, but were probably not kinsmen of the slayer. The last line in the passage refers to a law which we have already[74] mentioned, namely that which decreed perpetual exile for manslaughter committed between strangers in any given State. The penalty for ‘returning’ in such a case, that is, for rupture de ban, was death.

In a passage which refers to a case of kin-slaying, in which the dying man ‘forgave’ his slayer (without, however, granting a ‘release’), Plato says[75]: ‘If any person of his own accord absolves anyone for such a deed, let the purgations be made for the slayer as if his act had been involuntary, and let one year be the term of his absence from the country according to law.’ The theory of the legality of ‘private settlement,’ before or after trial, cannot be reconciled with this quotation. The phrase ‘according to law’ suggests that Plato refers to actual Attic law, and not to an ideal law of his own creation.

Plato adds that in such a case the slayer can never resume his ordinary domestic life, even though he recovers his civic status. Similarly, for the slaying in a passion of a husband by his wife, or of a wife by her husband, the penalty prescribed is three years’ exile, but such persons, even though not akin in blood, cannot return home to share in common domestic rites with their children, or to eat at the same table. In this law we see clearly the operation of a local or domestic ‘pollution’ which debars the slayer from his family hearth, and which is quite distinct from the civic pollution which debars him from certain definite States. It is important to observe that with the local or domestic pollution no civic or international law has ever interfered; whereas civic pollution has been regulated by law according to the varying degrees of guilt, and the claims of the relatives to ‘appeasement.’