Before discussing the legal aspect of parricide and of kin-slaying we must examine the question of the origin and evolution of official State execution in the capital punishment of homicide. The establishment of this method of execution had, we believe, an important influence on the penalty for parricide and, probably, for all general cases of wilful kin-slaying. The prevailing opinion on this subject tends to suppose that the method of private execution which is found in the Iliad and the Odyssey was the normal method of execution in historical Greece and even in Athens until the time of the orators, that is to say, the fourth century B.C. The only difference which can be found, according to this view, between the Homeric and the historical modes of execution is that in the former case the execution was unauthorised by any written law or by any public trial, while in the latter case it was legally authorised and permitted. Thus Gilbert[164] holds that the relatives of the slain personally executed the slayer in Athens in the fifth century, and that the exceptional instances of State execution must be attributed to the sacred ‘right of sanctuary,’ and especially to the Athenian sanctuary of the Semnai Theai. Glotz minimises as far as possible the change which, he is compelled to admit, had taken place in historical Greece. It was, he thinks,[165] from philanthropic motives that the State consented to execute the murderer if it was requested to do so by the relatives of the slain. The old principle of primitive society: ‘de voluntario convictus parentibus vel cognatis occisi tradatur occidendus’ gives place to an alternative principle that ‘murderers are put to death sometimes by the judges, sometimes by the relatives.’[166] At Athens, the ideals of philanthropy went one step further. ‘L’exécution étant faite au nom du peuple par le δήμιος (public executioner) le parent qui avait engagé la poursuite contre le meurtrier assistait à son supplice.’[167] It is clear that Glotz regards this public execution as strangely exceptional. He cannot, however, ignore the evidence of the orators. But he seems quite certain that this custom did not apply in the time of Dracon. ‘C’est dans l’Iliade et l’Odyssée qu’on surprend les origines des φονικοὶ νόμοι. Ce que la famille lésée demandait à l’état, d’après la loi de Dracon, c’était la permission de se venger. Il fallait donc que son droit fût reconnu, non seulement au moment des poursuites mais si elle l’emportait, au moment du supplice ou de l’expulsion. A l’origine de la juridiction sociale, comme dans la période antérieure de l’arbitrage, le tribunal, pour faire exécuter ses arrêts, n’avait que les armes de celui qu’il déclarait vainqueur. C’était le principe universel en droit grec, que l’exécution du jugement fût abandonnée à la partie gagnante.’[168] ... ‘Reconnaître le privilège de la famille en matière de poursuite et d’exécution, c’était pour Dracon admettre le principe de la vengeance privée, sauf opposition de l’état.’[169] But philanthropy will not explain the evolution of State execution, any more than the right of sanctuary will explain it. Public execution may be of a much more revolting character than the private infliction of death by an avenging relative in some secret place or at the tomb of the victim. Moreover, Glotz cannot suggest any definite date for the change of custom. He would probably have attributed it to Solon, only that he cannot assume a tremendous growth of philanthropy in that space of twenty years which separated him from Dracon; and he could not attribute an act of philanthropy to a legislator whose main object was the exaltation of State power! We admit that there is a certain suggestion of private execution in the infliction of death which was not only permitted but commanded when a murder-outlaw returned to forbidden territory. But in this case slaying was not the exclusive privilege of the relatives of the slain, but it was the duty of ‘the first citizen who met him’ to act as the avenger of the law. We have already[170] described such an ‘execution’ as a case of justifiable homicide. It is not in the least indicative of a system of private execution. The slayer acts as a State executioner. Neither can we argue, as Glotz does,[171] from the right of an injured husband to slay an adulterer in flagrante delicto, to the prevalence of private execution. Such an act is definitely declared by law to be justifiable homicide.
Our opinion on this subject may be thus summarised: (1) It is misleading to assume that the Achaean system of vengeance which is found in the Iliad and the Odyssey is the norm or standard of blood-vengeance either of tribal village communities or of synoekised States possessing a strong centralised government. Even amongst the Achaeans, we have shown,[172] there was a certain submission to military discipline, to a public opinion which discriminated between murder and vengeance, and therefore the avenger’s act was not entirely ‘private.’
(2) On the analogy of Indian tribal life, which Maine[173] has investigated, we may suppose that amongst Pelasgian village communities or tribal cities there existed a body of official police who acted as the supporters and preservers of tribal law. If, in such societies, homicide was not officially avenged, this was only because homicide was what we should now call a ‘civil offence,’ a matter for retribution between the families concerned.
(3) It was in post-Achaean times, and especially in the Hesiodic period and in the Dark Ages of Greek history, that murder and vengeance passed outside the control of law or discipline. In such conditions it was more than probable that murder would be unjustly punished, but it was equally probable that it would not be avenged at all. Into this abyss of chaos came in the seventh century the Apolline religion of ‘pollution.’ The birth of great States, the dawn of synoekised nationhood, was overshadowed by the wrath of gods and ghosts, which reflected the vindictive hatred of human vengeance. Amongst the first essential duties of the new-born States was the prevention of murder and the regulation of vengeance. In Attica, especially, where the blight of chaos fell most lightly,[174] could the new religion be most promptly honoured and obeyed.
(4) We will not maintain that the pollution-doctrine, alone and unaided, would have led to the official State execution of the penalty of death. Amongst the Hebrews,[175] one may point out, the ‘pollution’ of the murderer coexisted with the avenger of blood. The obligation of the State, one may hold, was satisfied by the trial and the condemnation of the murderer, and by the sentence of outlawry which was pronounced against him. But we would suggest, on the other hand, that Greek States did not confine themselves to a sentence of outlawry. The murderer, in Greek law, at the moment of his condemnation, nay at the moment that he challenged a verdict and uttered his second speech at the trial, no longer ranked as an outlaw; he was a State criminal whose insult to the State and its gods must be atoned by public execution. Like the sacrilegious criminal, he must be executed solemnly and with public execration. His body cannot be buried in the tomb of his fathers. Naked, it is cast beyond the civic boundaries, amidst the curses and the groans of the mob, to be eaten by dogs and wild birds when it has been bruised and mutilated by the stones and missiles which are hurled not by the relatives only, but by an angered populace.
Yet we cannot suppose that the pollution-doctrine of itself degraded murderers to the same level with sacrilegious criminals, at least in the judgment of Apolline theocratic nobles, the pre-historical Greek sacerdotal aristocracy. From the Ion of Euripides[176] we infer that sacrilege was the main element which the Delphian nobles and magistrates condemned in the attempted murder of Ion, the priest of Apollo, by Creusa. We cannot infer that ordinary homicide would have called for such public action unless we assume that the Delphians, in addition to being priests, were also the leaders of a civic government. Their action in the Andromache[177] in slaying, in conjunction with Orestes, Neoptolemus, who was consecrated by his presence in the sanctuary, cannot be reconciled with their procedure in the Ion unless we assume that the death of Neoptolemus was an act of vengeance. Such indeed it was, but, as Euripides presents it,[178] it was entirely out of proportion to the offence. The attitude of the Delphians in the Ion, and also the survival of the avenger of blood in Hebrew society under the operation of ‘pollution’ doctrines, prevents us from asserting that private execution was abolished by ‘pollution.’
(5) But we have suggested[179] that the murder code of historical Greece was a compromise between three forces: (a) the tribal traditions of material retribution to the relatives of the slain; (b) the Apolline doctrine of homicide as an offence against the gods; and (c) the conception of murder as an insult to the majesty of the State and to its gods, which arose after the synoekism of local peoples and the establishment of strong civic governments. As we believe that the pollution-doctrine abolished wergeld, so we believe that the concurrence of the pollution-doctrine with State power led to the abolition of private execution for homicide in the rare cases in which the murderer refused to flee and was put to death, because he had the audacity to perjure himself in the attempt to prove his innocence. It follows that official execution was in existence in Dracon’s time. There is no more reason for delaying its arrival twenty years in order to link its advent with the name of Solon than there is for supposing that wergeld was not abolished before the time of Solon. Between 600 B.C. and the time of Demosthenes we know of no civic or legal innovation to which such a change could be attributed. The ‘Eleven’ who obeyed the verdicts of the Heliasts also obeyed the decision of the Areopagus and of the pre-Solonian Ephetae courts.[180]
Such evidence for State execution as we possess in Plato and the Attic orators, far from suggesting that it was a recent innovation, implies on the contrary that in their time it was a well-established practice.
Lysias,[181] speaking of a certain Menestratus who was a prominent informer and an accuser of citizens under the Thirty Tyrants, says that the citizens of the restored democracy ‘having arrested Menestratus in court on the ground that he was a murderer,[182] condemned him justly to death and handed him over to the public executioner, and he was cudgelled till he was dead’ (ἀπετυμπανίσθη). There is, of course, a political complication in this case. The guilt of treason was added to that of murder. Yet the procedure is similar to that which would have taken place if an ordinary murderer challenged the verdict of the Court.
Plato,[183] speaking of the punishment which was decreed for a slave who had wilfully murdered a freeman, and who was condemned to death, says: ‘Let the public executioner lead him to the tomb of the deceased or to a place from which he may see the tomb, and having scourged him with as many stripes as the plaintiff (a relative of deceased) shall order, slay him if he survives the scourging.’ Even on a slave, then, who had murdered a man, the relatives could not personally execute the death sentence. Again, speaking of wilful kin-slaying, for which, in his code of laws, there is no option but death, he says[184]: ‘Let the servants (ὑπηρέται) of the judges and the rulers (ἄρχοντες) put him to death and cast him out naked to an appointed place where three roads meet, and let all the public officials (or magistrates) on behalf of the whole State carry each a stone and hurl it at the head of the corpse, and free the whole city from pollution, and, after this, carry the corpse to the civic boundaries and cast it out unburied according to law’ (τῷ νόμῳ). There is here no mention of the relatives of the slain. We must suppose that if these relatives had been the normal executioners, the kin-slayer would not ordinarily have been slain at all. Human nature, as well as the actual evidence, compels us to believe that the relatives of a kin-slayer would have revolted at the infliction of death, whether in Pelasgian or in historical times.