Again, Aeschines suggests that the enemies of a man condemned to death were impotent to do more than attend as spectators at his execution when he says[185]: ‘It is not death that is so terrible: the really horrible thing is the insult suffered at the last moment of life. How pitiable a fate, to see an enemy’s face relaxing into a broad grin, and to hear with one’s ears the insults of enmity.’ This quotation has been taken by Glotz[186] to imply that the memory of private execution was still vivid in Athens in the time of Aeschines; but in our opinion it merely shows that public execution was a regular and established custom. A private enemy could have laughed as a freeman died: he could have counted the stripes and commanded their continuance, as a slave murderer was scourged to death. But his hand was bound: he could not strike the blow of vengeance.
Demosthenes[187] attributes to a certain Diodorus, whose uncle was indicted for impiety by Androtion, because he had not prosecuted his nephew on a charge of parricide, the following statement: ‘If Androtion had succeeded in his prosecution of my uncle I as a convicted parricide should have been deprived not only of my property but of my life: nay, even to die, which is the common lot of all, would not for me have been easy.’ This passage implies that Diodorus, if convicted, in this indirect manner,[188] of parricide, would have suffered a cruel death. The conjunction of the death penalty with confiscation in this instance points very forcibly to State execution. Hence we believe that the cruel death to which Diodorus refers was the public execution which Plato describes when he speaks of stones being hurled at the corpse, and of its abandonment to the dogs and the birds. Glotz has, we think, completely misinterpreted this passage. He thinks[189] that the penalty indicated is perpetual exile and thus renders the concluding words of Diodorus: ‘Je ne serais pas seulement dépouillé de ma fortune, je ne pourrais plus vivre, et le réfuge commun de tous les hommes, la mort libératrice, ne serait pas un asile pour moi.’
Demosthenes confirms our hypothesis of the evolution of State execution in another passage which concerns wilful murder. Speaking of the accuser, he says[190]: ‘If his accusation is considered just and he obtains a conviction for murder, even then he gets no power over the condemned man, who is given over for punishment to the laws and to the persons charged with that official duty: the accuser may be a spectator while the condemned suffers the penalty which the law imposes, but he can do no more.’ This quotation speaks for itself. Its value as a link in our chain of reasoning it would be impossible to overestimate. The conclusion which it points is indisputable.
The explanation which Demosthenes gives of this law is not, indeed, very profound. ‘How comes this to be the case,’ he says,[191] ‘men of Athens? Because they that made the laws originally, whoever they were, Heroes or Gods, did not (seek to) oppress the unfortunate, but in a humane way as far as they could with justice, they alleviated their misery.’ But Demosthenes shows a certain clarity of vision in another place in which he examines the question why the laws were so careful to preserve the lives of murderers abroad. One of the reasons was, he says,[192] ‘to prevent an infinite series in the avenging of injuries.’ We have already quoted Euripides[193] for a similar sentiment: ‘Right well,’ he says, ‘did our ancestors in olden times enact these laws ... they punished the murderer with exile, but they suffered no one to slay him in return, for (in that event) each successive avenger would be liable for bloodshed.’ This sentiment may have been inspired by the atmosphere in which Euripides himself lived, and taken in conjunction with that which we have just cited from Demosthenes, suggests that the Greeks did not practise the ‘private execution’ of death penalties within the living memory of those authors. In the light of our conclusion we shall proceed to examine the position of parricide and of kin-slaying in historical Attic law.
Parricide and Kin-slaying
Two problems present themselves for solution: (a) First of all we must inquire whether parricide and kin-slaying were civic offences which were punishable by State law or whether the avenging of these deeds of blood was entirely at the discretion of the relatives and the clansmen; (b) secondly, we must decide what the nature of the legal penalty was (if the penalty was legal) in the historical era. The opinion of Glotz on this subject has already been given in outline.[194] He suggests that the pollution-doctrine affected the penalty for parricide, but he maintains that it was merely a public opinion which reinforced this doctrine and that the historical penalty was perpetual exile. The Draconian law, he holds,[195] did not interfere in the jurisdiction of the family. ‘En réalité Dracon n’édictait aucune sanction contre le parricide parce que l’Etat n’avait pas à s’occuper avec cela. La juridiction de la famille subsistait sur tous les points où elle n’était pas abolie par une disposition expresse. La loi ne parlait donc du parricide ... toutes ces questions échappaient à sa compétence.’[196] ‘Quand la conscience sociale se mit à intervenir contre les criminels, elle se proposait seulement de faire respecter les vieux usages. Elle obligea tous les meurtriers à quitter le pays au moins pour un certain temps: le meurtrier d’un proche, elle l’obligea ... à sortir de sa famille pour toujours.’[197]
In passing, we may note how inconsistent is this statement regarding the exile penalty for homicide with Glotz’s favourite hypothesis of the legality of ‘private settlement.’[198]
It is not true that the pollution-doctrine confirmed and preserved old customs. It was in many respects opposed to them. It tolerated them only by way of compromise. The last clause of the quotation which declares that the penalty for kin-slaying was perpetual exile is based upon a misinterpretation of a passage in the Laws of Plato. Plato clearly states that death was the invariable penalty for kin-slaying.[199] The exile penalty to which Glotz refers is applied by Plato only to extenuated or involuntary kin-slaying, and in this connexion there is no question of perpetual exile in the ordinary sense, but merely of banishment from the domestic hearth, not from the State or the country of the slayer.[200] Glotz quotes various analogies, such as[201] the Irish clan-law, which is revealed in the Senchus Mor, in support of his theory. But in historical Attic law we have left behind us the clan-laws of tribal society. We are in the presence of civic legislation and of international religious authorisation.
Caillemer,[202] who is admittedly influenced by Glotz, holds a very similar view. He says: ‘Il est très vraisemblable que la juridiction de la famille ne fut pas notablement modifiée par Dracon, et que le chef de famille garda le droit de juger et de punir sa femme, ses enfants, ses esclaves.... Avant Solon, le chef de famille, en vertu de sa magistrature domestique, pouvait ou bien mettre à mort la coupable, ou bien la chasser de sa maison.... Solon n’ignorait pas qu’il y avait à Athènes des parricides: mais il laissait à la famille le soin de les punir.... La société n’a pas à intervenir directement. Si cependant les parents manquent à leur devoir, une action publique va être donnée contre eux et elle pèsera de tout son poids sur l’homicide.’ The ‘public action’ which is here referred to is clearly the indictment for impiety, such as was brought by Androtion against the uncle of Diodorus.[203] But this indirect State interference which Caillemer is compelled by a passage in Demosthenes to regard as admissible in cases of parricide was the only kind of State interference which was permissible in cases of ordinary homicide in historical Athens. If then parricide and homicide stand on the same plane, so far as ‘social justice’ is concerned, why should we assume a distinction between them in regard to State jurisdiction and State execution? Caillemer attributes undue importance to an anecdote which is related by Cicero concerning Solon.[204] ‘On demandait,’ he says, ’un jour à Solon pourquoi il n’avait pas établi de peine contre le parricide. “J’ai pensé,” répondit-il, “que personne ne s’en rendrait coupable. Pourquoi statuer contre un attentat jusqu’alors sans exemple? Le défendre pourrait en inspirer l’idée.” In view of the fact that Solon did not change the murder-laws of Dracon, that the wording of those laws was sufficiently general to include kin-slayers, and that Roman ideas of jurisdiction and execution were different from those of Greece, we should be slow to base any theory upon such an anecdote. We read in Livy[205] that a certain P. Horatius, the father of a famous warrior who in a moment of passionate triumph slew his sister, and who was in consequence arraigned before the King and the Duumviri, said to the judges that he considered his daughter was justly slain, and that otherwise he would have punished his son by right of his parental authority.