Poine: a study in ancient Greek blood-vengeance

by Hubert Joseph Treston

We will now quote some extracts from Demosthenes in relation to the Athenian homicide-courts:

(1) The Areopagus.[54] ‘There are many institutions amongst us of a character not elsewhere found, but the most characteristic and venerable of all is the court of the Areopagus ... in ancient times, as tradition tells us, the gods deigned in this court alone to demand and to render justice for murder and to sit and judge mutual disputes: Poseidon sued Ares for having slain his son Halirrhothius,[55] and the twelve gods judge the suit of the Erinnyes and of Orestes: this tribunal neither tyrant nor oligarchy nor democracy has ventured to deprive of its jurisdiction in murder cases: everyone knows that any process of popular invention would be less efficacious than that of the Areopagus ... of this court only is it true that no convicted criminal or defeated plaintiff has ever assailed the propriety of its verdict. For all know that in the Areopagus where the law permits and commands proceedings for homicide to be taken, the person who charges another with such a crime will take an oath with imprecations on his family and his house: it is no ordinary oath that he has to swear ... he must stand upon the entrails of a boar and a ram and a bull: these animals must have been sacrificed by the proper persons and on the appointed days so that both in regard to time and to officiating persons every due solemnity may have been observed. Even then the person who has sworn such an oath is not yet believed, but if he is convicted of falsehood, he will carry away the curse of perjury upon his children and his posterity.’ The solemn procedure here described is also referred to by Antiphon[56]: and Lysias[57] assures us that ‘the plaintiff swears that the defendant was the slayer, the defendant swears that he did not slay.’ Pollux[58] states that both plaintiff and defendant were required to confine themselves to the point at issue and to abstain from any attempt to excite sympathy or compassion. What a contrast this picture presents to the procedure in a democratic Heliastic court composed of five hundred or seven hundred Athenian citizens, sitting together at the Crush, at the Triangle, at the Froggy or at the Scarlet![59] When Demosthenes says that the Areopagus was never deprived of its jurisdiction on homicide, not even by the democracy, we feel that he is acutely conscious of the contrast in the procedure of the Areopagus and of the Heliastic courts, as Antiphon certainly is[60]: we may also infer that some such democratic invasion had occurred in the case of the four other homicide courts in which the Ephetae at one time had exclusive jurisdiction.

(2) The Palladium[61]—the court for involuntary homicide: ‘here it is the law that both parties should first take oath (διωμοσία), then deliver their speeches, and finally that the court should decide.’ Demosthenes gives no further details, but the missing information is supplied by Aristotle and by Pausanias. We shall see presently[62] that at one period this court probably tried all kinds of homicide pleas between citizens. The legend[63] concerning Demophon’s plea at this court must have originated at such a period. But the court had developed, we think, before the time of Solon a specialised function in regard to pleas of involuntary homicide. The reason for this was, perhaps, because it was situated outside the city boundary and would naturally therefore have been selected as a court of appeal by exiles who had been convicted of manslaughter and who were anxious to return. Hence in Solon’s time this court was habitually appealed to by the citizens in charges of manslaughter. If it still continued to hear pleas of wilful murder between foreigners, this was perhaps because such pleas were regarded as of minor importance. In such cases no Athenian court could decree or execute the penalty of confiscation, since the slayers were foreigners, and their property was not subject to Athenian control. It is also possible that the laws of extradition (ἀνδροληψία) made it desirable to judge cases of homicide between foreigners at a court which was outside the original boundary of the city.

(3) The Delphinium[64]: ‘There is a third tribunal, of all courts the most sacred and filled with awe, in which a person acknowledges that he has slain another but contends that he has done it lawfully. This is the court at the Delphinium. It appears to me, men of Athens, that they who originally distinguished the lawful from the unlawful inquired whether it was right to consider no homicide lawful, or whether a certain kind of homicide must be considered lawful.... Considering then that Orestes who admitted that he slew his mother was acquitted by a tribunal of gods, they decided that some kinds of homicide were justifiable.... Having come to that decision they defined in precise terms the circumstances in which it was lawful to kill.’ What a halo of sanctity still seems to surround this Delphinium court! In ancient societies it was much less difficult to ascertain the identity of a slayer than it was to define the boundaries of righteous and unrighteous slaying. But once the boundary lines were fixed, and we have seen[65] how they were fixed by a law of Dracon, the judgment resolved itself into a question of facts. Apart from religion, however, facts may be obscured by perjury. Hence it was probably the religious atmosphere of the court, and also its procedure, which was consecrated by long tradition, that caused the verdicts of the court to be revered and respected.

We may ask whether, in the event of a verdict for the defendant (the accuser), this court could have condemned the vanquished plaintiff to death? We agree with Lipsius[66] that theoretically it could have done so. In practice, however, it rarely did so, because the Archon Basileus must have previously estimated the balance of guilt in favour of the plaintiff (accused), and if he were vanquished at the Delphinium it was probably open to him to advance a further plea of manslaughter in the Palladium. The real meaning of a verdict of this court against the plaintiff was an imputation of some degree of homicide guilt, not necessarily the full guilt of wilful murder.

The attempt[67] to connect Orestes with the institution of this court is very interesting, but it is not successful. If it was the Areopagus which really acquitted Orestes, why did the Athenians set up a new court for such pleas? If it was the Delphinium, then why did legend connect him with the Areopagus? According to one account it was the gods who acquitted Orestes,[68] yet it was open to Aeschylus[69] to represent him as acquitted by Athenian citizens! It is important, however, in view of our subsequent analysis of the Oresteian legend in Attic tragedy, to note that according to at least one form of the legend, it was on a plea of justifiable matricide that Orestes was tried and acquitted. Though Plato[70] says that in no circumstances was it lawful to kill one’s parent, yet Plato would admit, we have no doubt, that the command of Apollo constituted an extenuation if not a justification for such a deed, in the days of private vengeance. But the connexion of Orestes with two different courts suggests a variation in the legends of Orestes, for it is unlikely that the same legend would have represented him as having been prosecuted before both courts on the same charge.

(4) The Prytaneum[71]: ‘If a stone or a piece of wood or iron or anything of the kind falls and strikes a person, and we are ignorant who threw it but know and have in our possession the instrument of death, proceedings are taken against such instruments here.’ Demosthenes does not mention animals, but Aristotle supplies this deficiency.[72] It is strange to speak of an object ‘falling and striking’ and at the same time to assume that somebody threw it. We have already suggested[73] that even if the thrower was known, proceedings could still be taken against the object if the thrower could swear that he did not intend to kill any person. Is it not probable that the weapon by which a person was accidentally slain in war or at gymnastic exercises, or the weapon by which a person was deliberately but justifiably slain, according to the Draconian law, would, after the slayer’s acquittal at the Delphinium, be tried and found guilty here?

(5) At Phreatto[74]: ‘There is yet a fifth court ... that in Phreatto. Here, men of Athens, the law requires a person to be tried if one is in exile on account of involuntary homicide and if, before those who procured his banishment have accepted “appeasement” from him, he incurs another charge, this time, of wilful murder. The framer of these laws did not overlook the criminal’s case because it was impossible for him to come to Athens, nor did he take the charge against him for granted because he had done some such act before. He devised a means by which religion was not outraged and the criminal was not deprived of a hearing and a trial.... He brought the judges to a spot to which the criminal might come, appointing a certain place in Attica by the sea. The accused sails up in a ship and pleads without touching the land: the judges hear him and give their verdict on the shore: if found guilty, he suffers the penalty of wilful murder, quite justly: if acquitted, he escapes that penalty but continues to serve the exile decreed for his previous manslaughter.’ The influence of the pollution doctrine in the origin of this court is quite manifest. The contingency which is thus provided for was, no doubt, very rare, but it was not nevertheless ignored. The ‘framer of the laws’ here referred to is, of course, Dracon, but we think that the court may have existed for some years before his time. The seventh century is, however, the most probable date of its origin. In view of the facts narrated in this quotation it is difficult to understand how scholars can believe that ‘private settlement’ was legal even for manslaughter.[75] The theoretical power of the relatives of the slain to resist ‘appeasement’ as long as they wished is here most clearly indicated.[76] The procedure here described might, we think, apply to homicide which at first was adjudged involuntary but which came, in the light of later evidence, to be considered voluntary. The penalty of wilful murder here referred to is perpetual exile and confiscation of property. In the event of the slayer choosing to land, he could be arrested and delivered to the ‘Eleven’ for execution; hence it is clear that the verdict of this court involved, en rupture de ban, the penalty of death. Plato was probably thinking of this court when he decrees[77] that a murder exile who is cast by a storm upon the coast of forbidden territory may put up a tent in the water and must keep his feet in the water till he finds an opportunity for resuming his voyage!

In a continuation of this same passage Demosthenes[78] refers to a sixth legal process, involving, so to speak, a possible sixth homicide-court, which we have already[79] identified with the Prison court of ‘the Eleven,’ a special Heliastic court of summary jurisdiction. Demosthenes says: ‘If a man is ignorant of all the other legal courses, or if the time within which they must be followed has gone by, or if for any reason whatever he does not choose to adopt those (other) methods of prosecution, and sees the homicide walking about in the temples or in the market-place, it is lawful for him to “arrest” and bring the murderer to prison ... and when he is brought to prison, he will suffer no punishment till he is tried, but if he is found guilty, he will be punished with death: if however the person who arrested him does not get a fifth part of the votes, he will pay a fine of 1000 drachmae.’ Aristotle[80] says of the Eleven Gaol commissioners: ‘Their duties are to have charge of prisoners, to put to death all thieves, kidnappers and highway robbers if they confess their guilt, to bring them before the Heliasts if they plead not guilty, to discharge them if acquitted, to put them to death if convicted.’ Demosthenes clearly does not refer to a convicted murderer en rupture de ban. Glotz[81] is right in rejecting this possible interpretation of the passage. By a law of Dracon[82] a convicted murderer en rupture de ban could be put to death by the first person who met him or taken to the ‘Eleven’ for execution, without further trial. But Demosthenes suggests that the ‘Eleven’ could try a murderer and condemn him to death! Pollux[83] assures us that ‘the Eleven’ sat as a Heliastic court. But could they try cases of homicide? Was prosecution open to any citizen? Was there at Athens a γραφὴ φόνου?