[239] Laws, ix. ch. 10.
[240] Op. cit. ch. 17.
[241] P. 234.
CHAPTER III
ATTIC HOMICIDE-COURTS
Attic legends concerning origin of courts for homicide: the accounts of Pollux, of Aristotle, of Demosthenes: question of a γραφὴ φόνου: Plato’s Euthyphro: author’s theory of the origin of Attic courts for homicide: Dracon and the Ephetae: Solon and the Areopagus: the Exegetae.
In an earlier section[1] of this work we have explained what we consider to have been the origin and the evolution of judicial investigation in matters of homicide. We have said[2] that ‘the evolution of early Greek judicial authority is not a transition from a crude arbitrary local jurisdiction to an efficient central compulsory jurisdiction but rather a gradual extension to wider areas, in accordance with increasing political synoekism, of the judicial functions which had been previously discharged with equal authority within smaller areas.’ The influence of the ‘pollution’ doctrine in compelling the State to investigate and to adjudicate concerning degrees of blood-guiltiness has also been clearly shown.[3] We shall now apply our conclusions to the Attic homicide courts—the only Greek courts of which we have any precise and authentic knowledge. The actual origin of the Athenian courts is surrounded by mystery and obscurity. Many of the legends which refer to their foundation are clearly the fabrications of men who were born when these courts were already old. Places which in later times came to be notoriously associated with the courts which sat there to give judgment in homicide cases, had previously, in many instances, been consecrated by legends which had no connexion with homicide at all. The ‘Areopagus,’ for example, that is, the Hill of Ares, may have been at one time the scene of a battle in which Theseus, an Ionian King of Attica, proved victorious. The place would then naturally have come to be called ‘the Hill of Ares.’ Aeschylus[4] says that the hill got its name from the sacrifice which was offered to Ares by the Amazons whom Theseus defeated. Glotz points out that there was no temple of Ares on the Areopagus, and he holds that the connexion of Ares with this hill was derived from a time when Ares signified not only war but murder, as in the Homeric phrase, Ἄρεω ἀλκτήρ (avenger of blood).[5] This homicidal rôle of Ares, and, moreover, the existence of an altar of Athene Areia at the Areopagus, which is referred to by Pausanias, explains, he thinks, the real origin of the place-name. But Pausanias was not of this opinion. ‘Here also,’ he says, ‘is the Areopagus, so called because Ares was first tried here.’[6] This is really a third hypothesis as to the meaning of the word. Aeschylus gives also a fourth explanation. The place may be called, he suggests,[7] from the Erinnyes who here became ‘appeased’ under the form of Semnai Theai, but who were called Arai or Curses beneath the earth. The main point of interest in this confusion of opinions is that the hill called the Areopagus was in historical times so closely associated with trials for homicide that Ares had to be conceived as a murderer in order to retain his connexion with the place. Orestes, whose sojourn at Athens, as Homer relates it, had no connexion with homicide,[8] was associated, in legend, with the Areopagus to such an extent that Ares was almost eclipsed and the Athenians found it difficult to decide whose trial came first! Demosthenes[9] wisely refrains from deciding. ‘In ancient times,’ he says, ‘as we are informed by tradition, the gods on this tribunal alone deigned to demand and render justice for murder.... Poseidon claimed justice against Ares because of the murder of his son Halirrhothius, and the Twelve Gods sat in judgment between the Erinnyes and Orestes. Such are its ancient glories.’ Aeschylus is naturally led by dramatic considerations to regard the trial of Orestes as the first[10] Athenian murder-trial: and therefore, out of courtesy to Ares, he is led to reject the legend that Ares was a murderer, in favour of what we believe to have been an older story, namely that Ares was a war god to whom, on that hill, the Amazons sacrificed when they were overthrown by Theseus.[11] Euripides[12] accepts as a fact the trial of Ares on the Areopagus, but he places it prior to the trial of Orestes. It is quite impossible to base any historical reasoning upon such legends. The mention of the Areopagus in a law of Dracon—or rather, as we think, in a Solonian modification of it—is the only genuine evidence for the antiquity of the Court.
Similarly, in regard to the Delphinium, Pausanias implies that it was believed to be as old as Theseus: but we have not the least doubt that its exclusive association with pleas of justifiable homicide was a product of the seventh and sixth centuries B.C. Pausanias says[13]: ‘The Delphinium is the court for those who plead that they have committed justifiable homicide, which was the plea of Theseus when he was acquitted for killing Pallas and his sons ... and before the acquittal of Theseus every manslayer had to flee for his life.’ Such statements belong to the region of aetiological legend, but not to that of historical fact. Theseus slew Pallas and his sons in war[14]; hence his act was not homicide in the ordinary sense. We have seen that in Homer[15] Pelasgian manslayers had not to flee, for they could pay their share of the wergeld and remain in the home of their fathers. It is strange that Orestes was not more definitely connected with the Delphinium court, for his plea in most legends was justifiable homicide. Demosthenes suggests that Orestes’ acquittal by the Areopagus was the cause of the establishment of the Delphinium.[16] But Orestes was bound to the Areopagus by ‘hooks of steel’ and he could not be divorced from it! We have little doubt that the Delphinium was a temple of Apollo at Athens long before it became associated with homicide-trials. Legends which explain it as the court of Apollo the Delphian justifier of Orestes, or of Apollo the justifiable slayer of the Δελφίνη, or Python,[17] do not prove that the distinction between justifiable and unjustifiable homicide originated in or had any essential connexion with this temple.
Legend is equally powerless to explain the birth of the Palladium court. Pollux is content to give a legend which explains only the origin of the temple, and even this story is probably fictitious.[18] Pausanias[19] tells us a similar tale about the Argives and the wooden image of Pallas, but in order to account for the origin of the court as distinct from the temple, he relates that Demophon, son of Theseus, was tried here for having slain, in an attack upon the Argives, an Athenian citizen whom in the confusion he had not recognised as such. But we have seen[20] that such slaying, in Attic law, was justifiably accidental homicide, not manslaughter. Yet Pausanias fancies that he is explaining the origin of a manslaughter court! No wonder that he feels that ‘the reason why he was tried is a matter of dispute.’[21]