In his account of the Prytaneum court which tried inanimate objects or animals guilty of bloodshed and which also brought in verdicts against unknown murderers, Pausanias[22] refers to the ceremony of slaying an ox at the Bouphonia. ‘They call one of the priests,’ he says, ‘Ox-Killer, and he, after throwing the axe, runs away, for that is the usage: and, as if they did not know who had done the deed, they bring the axe into court as defendant.’ The first instance of such a trial occurred, he thinks,[23] in the time of Erechtheus: ‘Then first did Ox-Killer kill an ox, and left the axe and fled the country, and the axe was forthwith acquitted after trial and is tried annually even nowadays.’ Pausanias is probably correct in attributing to the Prytaneum an ancient origin. But the Bouphonia belongs to a different strand of development from that in which originated the trial of inanimate objects. There is a stage in the evolution of ancient religion in which the slaying of an animal was a religious offence and needed expiation.[24] This stage is quite independent of that in which the shedding of human blood became sinful. (We speak, of course, only of ordinary homicide, for in the earliest days[25] the slaying of a kinsman was a sin against the family ghosts and the gods of the hearth.) Now, the tabu against animal sacrifice had probably disappeared, in Greece, long before the seventh century B.C. when the tabu against human bloodshed had set in. But ritual is conservative, and the original rite of the Bouphonia continued to be carried out at a time when its meaning was lost and its origin forgotten. A new meaning—but a wrong meaning—was grafted upon this rite, a meaning which is derived from the trial of guilty animals and inanimate objects in the central Prytaneum court. Now this central trial was forced upon the State by the doctrine of pollution in the seventh century. The trial of animals at the Prytaneum cannot therefore be explained by the Bouphonic rite. The account of Pausanias is therefore misleading. We do not assert that the trial of animals and of inanimate objects in local courts was not as old as the Bouphonic rite. There is no time-limit to the antiquity of a jurisdiction which was necessary for the assessment of material damages, in such cases, in tribal society. This jurisdiction was also, we believe, appealed to in pleas of accidental homicide, as well as in cases where the slayer was unknown. But there is a vast gulf between local and central jurisdiction in such matters. Synoekism and ‘pollution’ were the two factors which bridged that gulf, but that result cannot have been earlier than the seventh century B.C. Hence we assert that the two events which are connected by Pausanias belong to two different strands of development.
Finally, in regard to the homicide court at Phreatto, legend is particularly at fault. Is this because the court was established very late, or is it that the conception on which the court was based could not easily have found analogies in the distant past? The latter, we believe, is the more correct explanation. The court at Phreatto was clearly and unmistakably derived from the religion of ‘pollution.’ The defendant pleaded from the deck of a ship and was not permitted to set foot on the shore.[26] This court had jurisdiction in the event of a person, who was already exiled for manslaughter, being afterwards, before his exile terminated, indicted for murder.[26] We may refer both accusations to the same act or to different acts. We may suppose, either that new evidence had been obtained which destroyed the plea of manslaughter guilt which had once been successfully advanced, or that an entirely new deed of blood had been laid at the door of the exile. It would have been clearly very difficult to find archaic facts so similar in general outline to such events that they could have been perverted so as to form archaic precedents. Legend[27] revealed no better precedent than the story of Teucer pleading innocence for the death of Ajax! This plea was made to Telamon of Salamis, before Salamis became Athenian, and is therefore entirely irrelevant. The name Phreatto seems to be derived from φρέαρ, φρέατος, which denoted an enclosed area of the sea near the Peiraeus where the court sat.[28] The origin of this court belongs to the pollution era, but that fact does not prove that its origin was very much later than that of the other courts, if we regard these other courts as centres of official State judicature functioning compulsorily under the influence of the ‘pollution’ religion. We maintain that there were courts for homicide from time immemorial in tribal Greece. But it was the seventh century that saw the birth of the Attic murder courts in that particular rôle which they fulfilled, with some slight modifications in respect of the distribution of labour in historical times.
As we cannot then derive any assistance from the legends in our attempt to describe the evolution of the Attic murder-courts, we are compelled to begin, so to speak, at the other end, and by arguing from survivals, to reconstruct the most probable mode of evolution from an analysis of historical facts.
We will begin with the synoptic account of Pollux[29] which is as follows:
(1) The Areopagus ‘judged (charges of) wilful murder and wounding with intent to kill, arson and the administering of drugs, if a person gives them with intent to kill.’ This account is identical in fact with that of Dracon’s law, as Demosthenes[30] quotes it. It is therefore probably based upon the Demosthenic passage or upon an archaic inscription. The clause φόνου καὶ τραύματος ἐκ προνοίας καὶ πυρκαϊᾶς καὶ φαρμάκων occurs both in Pollux and in Demosthenes.[31] Pollux adds that the nine archons were added to the Areopagites, and that they held their trials in the open air.
(2) The Palladium: ‘in this court are heard charges of involuntary slaying.’ Pausanias[32] corrects this account, though he is not himself very precise, when he says: ‘Murder-cases are taken in this court ... in which are also tried cases of manslaughter.’ Further details we shall presently adduce from Aristotle and from Demosthenes; we shall see[33] that this court tried no murder-cases except those which occurred between strangers.
(3) The Delphinium: the trials in this court are modelled, Pollux suggests, on that of Theseus and the Pallantidae ‘whom he admitted that he slew but asserted that he had justly slain.’
(4) The Prytaneum ‘judges about those who have slain, if they are unknown (ἀφανεῖς), and about inanimate objects which have fallen upon and slain (persons). The Tribe-Kings, whose duty it is to cast the fallen object over the (civic) boundaries, preside over this court.’
(5) The Court at Phreatto: ‘in this court anyone was tried who, being an exile for involuntary homicide, becomes liable to a second charge of wilful murder. The Court was by the sea; the accused had to make his defence from the ship, without touching the land....’
Pollux[34] then proceeds to describe the Heliastic courts, which were five or six in number. Pausanias[35] mentions four of these courts, namely: (1) The Crush; (2) The Triangle; (3) The Froggy and (4) The Scarlet. From this description of them we may infer that these courts were always distinguished in procedure if not in personnel from the famous Ephetae courts. One of these Heliastic courts which Pollux mentions is the court of the ‘Eleven’ Gaol-Commissioners. These officials had summary jurisdiction in certain cases. Aristotle[36] mentions the cases of ‘thieves, kidnappers and highway robbers’ who confessed their guilt. Demosthenes[37] refers to a prison court in which an accused but unconvicted murderer who was found frequenting temples or public places could be summarily tried and put to death. We shall discuss this court more fully presently. It seems to us to be properly described as a special kind of Heliastic court: for the Eleven were appointed, like the ordinary Heliasts, by lot.[38]