Demosthenes If any person shall kill another accidentally in a contest or in an ambush or in a battle by mistake or having caught him (in adultery) with his wife or with his mother, or sister, or daughter, or a concubine kept to beget free children, he shall not be put on trial (or he shall not be exiled) (φεύγειν) for such homicide: and if anyone resisting unlawful seizure or violence shall immediately kill the aggressor his death shall not be punishable,[93] and it shall be lawful to kill murderers (found after conviction) in our territory, but not to illtreat or amerce them, under pain of paying[94] double damage inflicted: no person shall be liable to any legal proceedings for homicide who gives information against (and therefore causes the death of) exiles who return when it is not lawful.[95] Plato If any person shall kill a citizen accidentally in a contest at public games ... or during a war or the practice of military exercises ... let him be purified according to the law brought from Delphi about these matters, and be immune from punishment: and, regarding physicians, should any person who is attended by them die without their intending it, let such physicians be immune by law.[96] If anyone catches a thief entering his house by night, with intent to steal ... and kills him, let him be immune. If anyone commits rape ... let him be slain with impunity: if a man finds his wife being ravished and kills the offender, let him be immune by law. If anyone shall kill a person, warding off unjust death from his father, mother, children or brothers ... let him be immune.[97] If any such persons (wilful murderers) set foot upon the civic territory of the slain, let him who first meets him ... kill him with impunity.[97]

We have elsewhere[98] cited a Delphic law which concerned justifiable slaying, and which, in its completeness, we regard as the common parent of both these legislations. These excerpts are strikingly similar, especially if we remember that they are a number of extracts which we have put together with the object of eliciting a complete list of cases. No better proof than this could be adduced of the ‘historicity’ of Platonic legislation[99] regarding homicide. Antiphon[100] refers to the legal immunity of physicians, and we may therefore consider this Platonic law to be also Draconian (or Solonian).[101]

To both the above quotations our triple classification of cases of justifiable homicide can without difficulty be applied. Confining our attention to the Demosthenic account, we may point out that the reference to accidental slaying in a contest, ambush, or battle, is covered by our first category: the infliction of death for adultery or seduction is included in our second category: and the slaying of unjust aggressors, and of murderers en rupture de ban, in our third category.

In regard to adultery, we have already[102] suggested that the right to kill in flagrante delicto must not be regarded as a relic of a primeval custom which decreed the death penalty for adulterers in all circumstances. The Gortyn laws and the Homeric customs which are denoted by the word μοιχάγρια support our view that the right to kill in flagrante delicto was an innovation of the period of synoekism and of centralised government. Philippi[103] thinks that there is a strong probability of correctness in Pausanias’ view[104] that the age of Theseus represents the point at which the distinction of justifiable homicide could be applied in such matters. But our reading of Pausanias suggests that in his view the distinction was first applied to adultery in the time of Dracon.[105] We believe the distinction, thus applied, was as late as the seventh century, and we agree with Pausanias that the penalty thus decreed was severe.

Wilful Murder

We have seen that the restored Draconian inscription contains no reference to wilful murder. Demosthenes quotes a law which merely mentions the crime and which is mainly concerned with the allocation of trials for wilful murder to the Areopagus court which normally had jurisdiction in such cases. We shall discuss this law when we come to describe the Athenian homicide courts. The actual penalties for murder can only be inferred from the wording of other Draconian laws, and from other sources, such as Plato. Thus we may infer from the law[106] which declared inviolable the person and property of involuntary slayers, who are described as ‘those who have gone into exile and whose property is not confiscate,’ that in the graver kinds of homicide, such as murder, the criminal’s property was confiscated to the State. Again, from the law[107] which forbade the slaying of a murderer ‘whilst he keeps away from the markets on State-boundaries and from public games and Amphictyonic festivals,’ and from the further law[108] which permitted the slaying of a murderer found, after conviction, in his native territory, we may infer that death was the normal penalty for any murderer who did not go into perpetual exile. Demosthenes, in the speech against Meidias,[109] says that ‘the laws punish those who have slain with intent by death or (καί) perpetual exile and (καί) confiscation of property.’ Plato[110] is quite lucid in his account of wilful murder, but he omits to mention confiscation of property. ‘Whoever,’ he says, ‘deliberately and unjustly shall kill with his own hand any of his fellow citizens (τῶν ἐμφυλίων), let him be debarred from civic and religious privileges (τὰ νόμιμα) and let him not “pollute” the temples or ports or other public meeting-place ... let him who is convicted pay the penalty of death and let him not be buried in the native land of the slain [or in his own, if that is different]: but if he goes into exile without wishing to challenge a verdict (κρίσιν ὑποσχεῖν) let him remain in perpetual exile.’ Demosthenes[111] implies that the last moment at which the murderer could flee was ‘after the first speech’ at the trial.[112] Pollux[113] clearly means to say the same thing, though the omission of the tiny negative μή has annoyed the commentators.[114] ‘The Areopagus,’ he says, ‘judged cases of slaying and wounding with intent (to kill) and arson (with intent to kill?) and (the administering of) drugs if one intends to kill in administering (them).’ So far his words are identical with those of the ‘Draconian’ law, as it is given by Demosthenes. He continues: ‘There took place a preliminary oath (διωμοσία), and after this the trial ... and after the first speech it was lawful (for the defendant) to go into exile if anyone had slain his parents’ (εἴ τις γονέας εἴη ἀπεκτονώς). When we discuss presently[115] the Attic law of parricide and kin-slaying, it will perhaps be more obvious that Pollux must have written εἰ μή τις γονέας εἴη ἀπεκτονώς, ‘unless a man had slain his parents.’ The ‘Draconian’ law concerning the Areopagus will be discussed later, in our chapter on the Attic murder courts. We need not enter into the details of the preliminary accusations, the investigation before the Archon Basileus, and the three monthly trials which preceded the final trial and the verdict. Such details, if not already referred to, may be found in all the ordinary books of reference.[116] But there is one question which merits a brief examination at this stage: namely, the question whether the death penalty, in cases of wilful murder, cancelled or obviated the confiscation of the murderer’s property to the State.

We have seen[117] that in the wergeld system of the tribes, the death of the slayer generally affected the payment of wergeld, though custom seems to have varied between the cancellation of the whole wergeld and the cancellation of the murderer’s share. But we do not think, as Glotz appears to think, that confiscation took the place of wergeld. The purgation-rites for homicide, says Glotz,[118] caused the creation of sanctuaries and gave to the gods their share of the ποινή. We have seen[119] that in tribal societies which practise wergeld there was a saraad or honour-price, quite distinct from the galanas or wergeld proper, and it was this honour-price which we consider to have been the indirect source of the later penalty of confiscation. In the evolution of strong central civic government, or of theocratic power, this element could have been, and usually was, retained, when wergeld was abolished. But ‘honour-price’ rarely amounted to the total property of the offender. Hence the direct source of the confiscation penalty must be sought elsewhere. We have suggested[120] that one direct result of the evolution of State-power was the conception of certain ‘crimes’ or ‘sins’ as an insult to the State and to its gods. This insult had to be atoned for in a more substantial and drastic manner than by the mere payment of an ‘honour-price.’ The State created new penalties, of which the most important was civic degradation (ἄτιμία). In Greece, this degradation in its graver forms was usually attended by perpetual exile and confiscation of property. It is impossible to explain the conjunction of these two penalties, except on the assumption of grades of criminality and of degrees of severity in deterrence and in punishment. We cannot suppose that wilful murder was the gravest crime or sin which the State had to punish. Treason was much graver. The penalty for treason, at least in fifth-century Athens, was death and confiscation of property[121]: and this, we believe, was also the penalty for parricide.[122] But the penalty for treason was collective and hereditary. No descendant of a traitor could be permitted to live, or to possess property, in the State which condemned him. The penalty for parricide was, however, individualistic, except in so far as confiscation implied a certain injury to the offender’s family and his descendants. If we may trust Andocides,[123] the penalty for sacrilege was death, without confiscation of property, in Athens in 399 B.C. Glotz[124] thinks that after 403 B.C. confiscation did not accompany death for any crime, even for treason. We have already[125] discussed a passage in the Third Philippic speech of Demosthenes, which implies that there was a relaxation in the punishment of treason which the orator attributes to lack of patriotism. Demosthenes frequently compares the penalties for manslaughter with the penalties for murder, and says that they were rightly less severe.[126] But if death and confiscation were the penalties for murder, it would, we think, be rather ironical to describe these penalties as ‘more’ or ‘less’ severe! We shall see presently[127] that exile without confiscation was the penalty for wounding with intent to kill. The phrase which Demosthenes uses, in speaking of murder-penalties, is unfortunately rather ambiguous. He says[128]: θανάτῳ καὶ ἀειφυγίᾳ καὶ δημεύσει τῶν ὑπαρχόντων: here, we must suppose that the first καί means ‘or,’ and we may suppose that the second means ‘and’: and we translate ‘by death or by exile and confiscation of property.’ This juxtaposition of words suggests, on the whole, that death absolved the murderer from confiscation.

We may support this conclusion from Pollux and from Aristotle. The latter, speaking of the sale-commissioners (πωληταί) at Athens, says[129] that, amongst other things, they ‘sell the estates of exiles from the court of Areopagus and the property of State debtors.’ Pollux[130] says of these same officers that they ‘sell the property of those who have fled from the Areopagus after the first speech.’ If death was accompanied by confiscation for wilful murder, why do not Pollux and Aristotle say so? The reference of Pollux to exiles who fled ‘after the first speech’ must apply to murder-exiles, and to them alone. This whole subject has been ably discussed by Glotz,[131] and we are glad to be in agreement with his main conclusion, that death absolved from confiscation in cases of wilful murder. We agree with Glotz that the phrase in Lysias,[132] ἐγὼ γὰρ νῦν καὶ περὶ τοῦ σώματος καὶ περὶ τῶν χρημάτων καὶ περὶ τῶν ἄλλων ἁπάντων κινδυνεύω, does not prove, as Philippi[133] maintains that it proves, the combination of death and confiscation in such cases. The word σῶμα here, as Meier[134] and Glotz[135] point out, means civic status, like the Latin word caput, and need not refer to ‘life.’ In general, we may say of the ancient authorities what Glotz says[136] in reference to one of Antiphon’s Tetralogies,[137] that if the dual punishment was legal it could not fail to have been mentioned. If we add to this fact of omission the force of our general reasoning as to the origin and raison d’être of the penalty of confiscation, and the plain and obvious inferences from the Attic murder laws, we cannot come to any other conclusion than that which we have reached. Philippi must stand alone as the sole exponent of the opposite opinion.