Plato implies that one year was the normal period of exile for manslaughter. The Greek verbs ἀπενιαυτίζειν[76] and ἀπενιαυτεῖν convey the same implication. Can this fact be reconciled with the law of Dracon? We believe that it can, but only by distinguishing between theory and practice, between local and central courts, between local and central religion.
Plato shows how local judges would have solved the difficulty caused by recalcitrant relatives. We have seen[77] that Plato decrees perpetual exile for manslaughter between strangers. But exile from what State? Surely it was only from the State in which the deed took place: and the reason for this penalty was probably the fact that the relatives of the slain did not live in the State where the deed took place: and hence no ‘appeasement’ of these relatives could formally admit him to that State, though he could be admitted through ‘appeasement’ to his native State, if the slayer and the slain were both citizens of the same State. Thus the tendency of the pollution doctrine, apart from the claims of the relatives of the slain, was to exact perpetual exile for manslaughter. Plato decrees that any citizen had the right to prosecute a stranger for manslaughter, but not that he had a right to accept ‘appeasement.’[78] Hence, by a strange paradox, the relatives of the slain provided a medium by which the man-slayer regained his civic status. Yet, in the case of involuntary kin-slaying, the slayer could never re-enter his home! We believe that these decrees are not Platonic creations, but were found in Attic law, written or unwritten. Can they be reconciled and made intelligible?
We saw[79] that wergeld was not admissible for kin-slaying in the Pelasgian tribal system. Outside the kindred, however, wergeld permitted the slayer to remain at home or to return after a time, if he could not pay the full were. A comparison of such customs with the historical homicide code suggests quite obviously a compromise, in which the seventh-century pollution-doctrine failed to impose its will on the relatives of the victim because of a real or presumed ‘forgiveness’ on the part of the slain. Without the anger of the dead, the pollution doctrine could not operate.[80] Apollo himself could not enforce it. The relatives of the slain had a just claim to be regarded as the best interpreters of the anger of the dead. It was in this crevice, so to speak, in the doctrine of pollution that the kindred of the slain drove the thin end of their old tribal wedge. They claimed the right to determine the period of exile for manslaughter, but for manslaughter only: for in such cases the anger of the dead could not be regarded as perpetually implacable. In theory, then, these relatives had the right to consent to ‘appeasement’ at any time; but in deference to the dead their consent could not become effective before a year had passed. They could in theory delay their consent indefinitely, but delay was less probable in local than in central jurisdiction. They were compelled by law to prosecute the manslayer in court if the slayer denied his guilt; but if he admitted guilt, no trial was necessary; and it was only in such a contingency that ‘appeasement’ could occur without trial: nevertheless a year’s exile was still necessary before the relatives could accept ‘appeasement’ and finally remove the barriers to ‘purgation.’ The fact that the involuntary kin-slayer could never re-enter his home we attribute to the tradition of Pelasgian domestic religion.[81] This solution reconciles, we think, the law of Dracon, the code of Plato, and most of Demosthenes’ references. It is also in harmony with our general theory[82] of the compromise between ‘pollution,’ tribal wergeld, and State law, which is expressed in the murder-code of historical Greece.
Justifiable and Justifiably Accidental Homicide
In our analysis of the Attic laws concerning justifiable homicide, we will begin by drawing a distinction between three possible contingencies. First of all, we can conceive that blood has been shed without any intent to kill, but with a certain element of neglect (ἀφυλαξία), which has however been expressly mentioned and declared to be justifiable in law. Secondly, we may suppose that there was a certain degree of intent to kill and a certain amount of deliberation, but also that there was an extenuating element of impulse or passion which has been decreed guiltless, in certain circumstances, by the law. Thirdly, we may suppose that the person slain was an outlaw or a State-criminal, whose life was forfeit by the laws of the land, and whose citizen-slayer was declared to be justified in advance.
Homicide of the first class has so much in common with ordinary accidental homicide that we think it probable that they were often confused in Greek thought, if not in law. The words ἄκων and ἀκούσιος which, we have seen,[83] were applied indiscriminately to denote cases of different degrees of guilt in accidental slaying and in manslaughter, were also used to denote such forms of accidental slaying as were expressly ‘justified’ by law. Perhaps this confusion may help to explain still further the apparent discrepancies in Demosthenic references to ‘release’ and ‘private settlement.’ For the case which we are now discussing, there was no penalty, no exile, or loss of property, not even a fine. Pleas of justifiably accidental homicide were doubtless frequently made in answer to charges of manslaughter or of wilful murder. The King-Archon (and perhaps also the Tribe Kings) had to decide between the merits of the ‘charge’ and of the ‘plea.’ Obviously, it was always as a result of a ‘plea,’ never as a result of a ‘charge,’ that homicide cases were referred to the Delphinium court.
Justifiable homicide of the second class has close affinities with extenuated manslaughter, or slaying in a passion. The essential difference lies in an express legal justification in one case, and the absence of such a justification in the other. When we come to analyse the Oresteian legends of Attic tragedy we shall find[84] that the close affinity which exists between these two legal conceptions caused considerable confusion in the legends—caused Orestes to be immune from punishment, from one standpoint, but liable to a period of exile, from another. The oracle of Apollo, which commanded him to slay his mother, should naturally have been accepted as a complete justification. Some legends took this view.[85] But such a contingency was not expressly mentioned in the Attic laws concerning justifiable homicide. Plato assures us[86] that under no circumstances, not even in self-defence, was it lawful to slay a parent. Hence it became necessary to regard Apollo as the divinely immune cause of guilt; and Orestes, as his blind, obedient instrument, became liable to a merely nominal charge of manslaughter or extenuated matricide! His mother was almost compelled to ‘forgive’ the deed! In one legend[87] Apollo commanded the Erinnyes to withdraw from pursuit, and drove them from his temple; in another he decreed that they should pursue Orestes for a year![88]
Our third classification includes cases in which only two issues could be raised—namely, lawful homicide or wilful murder. From this point of view the act of Orestes could also be discussed, and an Athenian court could find it interesting to discuss and difficult to decide at what precise time in the post-Homeric social evolution did private vengeance become illegal! The trial of Orestes at Argos, which Euripides describes in the Orestes, seems to depend upon this legal difficulty.[89]
We will now illustrate these cases by relevant quotations.
Aristotle’s[90] account is a mere extract, or rather a kind of summary: ‘Homicide,’ he says, ‘admitted and alleged to be lawful, as of an adulterer caught in the act, or of a friend mistaken for an enemy in war, or of an antagonist in an athletic contest, is tried in the Delphinium.’ The first clause has been included in our second classification, the rest of the cases belong to our first category. Demosthenes quotes[91] the Draconian laws, and his account is almost identical with that which Plato[92] gives. To facilitate comparison, we will quote both accounts together in parallel columns: