Again, Livy tells us[206] how a certain Cassius, a consul, as soon as he went out of office, was sentenced to death and executed. ‘There are some who say that his father inflicted the punishment, that after putting him on trial in private he scourged him and put him to death.’ Such passages illustrate the well-known patria potestas of a Roman father. Yet even in Rome the State could interfere in such matters, since we find that a Decemvir ordered the arrest and the imprisonment of a certain Virginius who had slain his daughter.[207] Rome, however, can give us no really valid evidence for Greek law. The power of a father to sell his daughter as a slave, which Solon abolished, was a remnant of patria potestas.[208] But Solon’s interference in such matters proves that the sacred jurisdiction and power of the family had been already in his time invaded by the State. All matters which concerned public morality and utility, all matters which were affected by national or international religion, had naturally passed out of the exclusive control of the kindred. We have already indicated[209] the survival in historical Greece of clan-courts and of local religious corporations. We have also quoted Plato[210] for the operation of local jurisdictions in cases of ‘wounding in a passion,’ between members of the same kindred.
But the religious doctrine of pollution placed the actual slaying of kinsmen on an altogether different plane. Moreover, we believe that the evolution of State execution affected the question of the penalty for kin-slaying. Demosthenes, in two passages[211] recently cited, makes his client Diodorus say that if Androtion had succeeded in the indictment for impiety which he had brought against the uncle of Diodorus, he himself, as a result of the indictment, would not only have lost his property but would also have lost his life. Now such a confiscation of property must have been a State confiscation: and the only authority which could decree or execute such a confiscation was a State court and State officials. It is therefore natural to assume that the death penalty would also have been carried out by the State.
Plato describes, in hideous detail, the execution by public magistrates of the slayer of a kinsman.[212] Even for malicious wounding within the family, the penalty of death is decreed.[213] For wounding in a passion, a fine could be imposed by the parent or the male kindred of the offender: but if a parent was wounded by his child, death could be inflicted, even by a tribal court, in which none of the relatives of the child could act as judges.[214]
Lysias[215] makes one of his pleaders repudiate, most emphatically, the suggestion that parricide was not criminal and illegal. The word ἀνδροφόνος, or homicide, includes, he says, implicitly if not explicitly, the slayer of a parent. Pollux,[216] however he be interpreted, must be regarded as implying that parricide was a crime, which was probably punished by the Areopagus. We have quoted the relevant passage already.[217] Pollux is describing the Areopagus, which was the admittedly regular court for wilful murder. He refers to the preliminary affidavits, and, speaking of the final trial, is represented by the text of Dindorf as saying ‘After the first speech it is lawful to go into exile—if one has slain one’s parents’! Now, if we suppose that this text is correct, it would follow that parricide was a State offence which was judged by the Areopagus State court. But the same conclusion can be maintained even if, as we believe, the text is incorrect. We believe that Pollux wrote not εἰ but εἰ μὴ, and that he means ‘unless one slays one’s parents.’ He clearly implies that parricide also came before the Areopagus.
Finally, the Euthyphro of Plato, which represents a man actually bringing an indictment or a charge of murder against his father, cannot be explained on the assumptions of Glotz and Caillemer. The weakness of Euthyphro’s legal position is pointed out by Socrates,[218] namely that Euthyphro was not a kinsman of the slain. The threatened indictment was a δίκη, not a γραφὴ. It was a regular charge of homicide which was lodged with the Archon Basileus.[219] Now Socrates’ objection would not apply if the slain man had been a kinsman of the accuser: and this would necessarily have been the case if the father of Euthyphro had slain a member of his own family or kindred.
We have seen[220] that in the days of private vengeance and of tribal society, kin-slaying was normally punished by exile, as wergeld was impossible, and kinsmen revolted against the infliction of death. In those days, kin-slaying was normally a matter for the jurisdiction of the clan. In historical times, kin-slaying was punished by death and the confiscation of property—and these penalties can no longer be regarded as in conflict with clan-psychology, since the slayer was prosecuted in a State Court and was executed by State officials. All these facts are therefore quite consistent and they are mutually explanatory. It was the doctrine of pollution and the evolution of civic government which produced so drastic a revolution in the punishment of kin-murder.
We can now understand quite clearly the meaning of Plato’s reference to the penalty of kin-slaying: ‘Of a kindred blood defiled,’ he says,[221] ‘there is no other cleansing, and the pollution cannot be washed away until the life of the slayer shall atone for kin-blood by kin-blood and appease and set to rest the anger of all the kindred. It is proper that a person be restrained from such deeds by the fear of such punishments from the gods.’ Euripides also expresses the same sentiment in the Medea. The Chorus say[222]:
Stern upon mortals the vengeance falleth
For kin’s blood spilt: from the earth it calleth,
A voice from the gods, and the slayers appalleth,