Private Settlement for Wilful Murder
It is, however, rather inconsistent for Glotz to maintain that confiscation (though prevented by death) was an invariable concomitant of exile and at the same time to suppose that ‘private settlement’ for wilful murder was legal.[138] On purely material grounds, and apart from any religious considerations,[139] it seems obvious that no State would have legalised a bribe which, by paralysing the action of the leading prosecutor, removed from the murderer all civic degradation and deprived the public treasury of that property which it regarded as a partial retribution for the insult which its religion had received. It is not necessary for Glotz[140] to propose, as a novel hypothesis, that the phrase μηδ’ ἀποινᾶν, which forbade the amercement of a murderer en rupture de ban, was a Solonian innovation. Why should Solon have troubled to forbid such amercement if ‘private settlement’ was legal? Glotz would answer that the phrase μηδ’ ἀποινᾶν refers to the abolition of wergeld: that wergeld was one of the pillars of clan-power: that Solon, being opposed to clan-power, therefore abolished wergeld: but that ‘private settlement’ was not wergeld and stood therefore on a different plane: that Solon could not have abolished ‘private settlement’ as long as the relatives had the initiative in prosecution! This position we have already[141] discussed at length. It seems clear, prima facie, that ‘an amercement en rupture de ban’ was not wergeld but was very much akin to, if not actually identical with, ‘private settlement.’ The splendid hypothesis of Glotz must therefore be turned against himself. We may go a step farther. As there is no reason for supposing that Solon rather than Dracon should have prohibited ‘private settlement’ for wilful murder, the phrase μηδ’ ἀποινᾶν, which does not refer to wergeld but does forbid a kind of ‘private settlement’ or ‘amercement,’ is therefore quite properly Draconian. As for wergeld, we have shown that it was abolished, or at least that it lost all but the shadow of its substance, in the religious revolution which declared murder a ‘pollution.’ Any possibility of its resuscitation was removed when in the atmosphere of theocratic religion the State gods claimed, as a retribution, the property of the slayer. For cases of wilful murder at least, which was now placed on an execrable pedestal beside treason and sacrilege, the days of retribution to the relatives of the slain were no more.
Refusal of Burial to Executed Murderers
From Plato[142] we infer that there could be no burial for murderers who did not go into exile and who were executed by State officials.[143] We need not again[144] call attention to the importance of burial in ancient Greece. It alone gave repose to the dead, and enabled the entombed spirit to be periodically revivified, and even recalled from Hades, by the offerings made at the grave. The refusal of burial to murderers, especially kin-slayers, to traitors, and sacrilegious persons, was a particularly revolting form of supplementary punishment. Their bodies, stripped naked and cast beyond the boundaries, were devoured by dogs and birds. No wonder that a pleader, in a Demosthenic speech,[145] says that to them death was not easy, as it was to ordinary men. No wonder that the slayer would flee and lose his property rather than preserve it for his children at the cost of such a fate.
Plotting and Contriving Murder
Included in the category of wilful murderers, from the legal standpoint, were the plotters or contrivers or instigators of murder, at least when the plan materialised.[146] Andocides, in his speech On the Mysteries, says: ‘This law existed in former times and now also exists, namely, that the “plotter” shall be liable to the same penalty as he that has wrought with his hand.’[147] From the law[148] of Dracon which declares that ‘if anyone shall kill a murderer or be the cause of his death (αἴτιος φόνου) while he abstains from the markets on the civic boundary ... he shall be liable to the same penalties as if he had killed an Athenian,’ we can infer that the equation of plotting to kill with unjustifiable homicide, which is here mentioned, applied also to ordinary wilful murder. Plato[149] confirms this conclusion, but suggests that in regard to burial the slayer was more severely punished than the ‘plotter.’ ‘If a person,’ he says, ‘shall not with his own hand (perpetrate) but shall suggest to another a deed of murder and by deliberate plotting (βουλήσει καὶ ἐπιβουλεύσει) be the cause of slaying, let there be for him similarly ... a trial and verdict.... If convicted let it be lawful for him to have the family burial place.’ Demosthenes[150] puts the matter beyond the pale of doubt when he says: ‘Remember, the father of the priestess at Brauron, who was admitted not to have touched the deceased, was sentenced to exile by the Areopagus because he instigated the actual striker to strike.’ This sentence of banishment for plotting murder probably carried with it the confiscation of the plotter’s property. Aristotle tells us that one of the terms of the Peace made between the rival factions in Athens in 403 B.C. was as follows[151]: ‘Trials for homicide in accordance with the ancient laws shall only be held in the case of persons who have killed with their own hand.’ We can understand the political significance of such a condition: but it was merely a temporary amnesty for criminal political intrigue. The guilt of the plotter or contriver of homicide is frequently referred to in Attic tragedy. It was, we must suppose, a strong feature in traditional legend. Euripides, as we shall see, refers to this blood-guiltiness in several plays, for instance in the Orestes,[152] the Electra,[153] the Medea,[154] the Andromache,[155] and the Heracleidae.[156]
But there is another kind of homicide guilt which may easily be confused with this, namely ‘attempted murder.’ The Greek words βούλευσις and ὁ βουλεύσας are unfortunately ambiguous, as we have already explained.[157] Subjectively, the guilt of the ‘plotter’ and of the ‘attempter’ is the same, but objectively there is a difference. In one case a human life is violently taken: in the other it is not. Lipsius seems to have confused these issues.[158] In Aristotle’s account of the Attic murder courts, he finds a reference to βούλευσις being tried at the Palladium. Knowing, from the speech of Demosthenes against Conon,[159] that ‘plotters’ were tried at the Areopagus, he supposes that a change of jurisdiction had taken place shortly before 330 B.C. Before this, he implies that there was a division of labour by which βουλεύσεις φόνου ἀκουσίου were held at the Palladium, and βουλεύσεις φόνου ἑκουσίου at the Areopagus. We confess we cannot find any meaning in ‘plots of manslaughter’; it is a contradiction in terms! Now Poste, in his translation of this Aristotelian passage, does not use the word ‘plotters’ in connexion with the Palladium. He translates thus: ‘Homicide with malice aforethought is tried in the Areopagus, including homicide by wounding, by administering poison, or by fire ... involuntary homicide, attempts to commit homicide ... are tried in the Palladium.’ Thus, we see the difficulties which arise from ambiguities of language. We have quoted Andocides for the principle that plotting murder was regarded as equivalent to wilful murder. A Draconian law mentions both kinds as equally punished in cases of unjustifiable homicide. Therefore plots to kill would normally always have been tried by the Areopagus. Poste’s translation of Aristotle, which is superior to Lipsius in this respect, nevertheless suggests perhaps that ‘malicious wounding’ without fatal results was not tried by the Areopagus. The law which Aristotle gives is that of Dracon, and it means that the Areopagus tried wilful murderers, plotters of murder, wounding with intent to kill, poisoning with intent to kill, and arson—whether with intent to kill or not, we cannot say. Attempted murder must be defined, we think, owing to some discrimination in Attic legal procedure, as an attempt to kill which did not cause any actual bodily harm.[160] Such attempts may have been always tried at the Palladium, but what the penalty was we cannot say—it was probably banishment for a period of years.
For wounding with intent to kill, the penalty was perpetual exile,[161] which was not accompanied, we think,[162] by confiscation of property. The penalty for ‘plotting’ murder (which was successful) was death or banishment, accompanied by confiscation. Wounding without intent to kill was a case for civil damages, before the Heliastic courts—it was perhaps a δίκη αἰκίας.[163]