The Question of a γραφὴ φόνου
Glotz answers the question in the negative. But Pollux says[84] that there was a γραφὴ or public indictment for wilful murder, for malicious wounding, for arson, and for poisoning, as well as for adultery, sacrilege and impiety. The Heliasts were the normal judges for indictments (γραφαί), though Philippi[85] thinks that indictments could be also brought before the Areopagus. Was it then possible for any citizen to indict a murderer before the Heliasts in the time of Demosthenes? If so, what becomes of the law of Dracon which prescribed prosecution by the relatives? Glotz says[86]: ‘Si Solon avait imaginé une γραφὴ de ce genre, il eût par là-même ruiné la loi de Dracon sur un point essentiel.’ Caillemer finds it difficult to solve the question. He says[87]: ‘La question est malaisée à résoudre et très controversée parce que les textes sont contradictoires ou obscurs ... l’institution par Solon d’une véritable φόνου γραφή, la concession à tous les citoyens du droit d’intenter une action d’homicide, pouvait-elle se concilier avec le principe même de la loi de Dracon? Lorsque les plus proches des parents du défunt étaient d’accord pour pardonner ou pour transiger, les parents plus éloignés n’avaient pas le droit de poursuivre le meurtrier devant les tribunaux.’ He concludes, however: ‘en fait, dans beaucoup de cas, on pouvait arriver à la répression du meurtre par d’autres voies. Certains homicides donnaient certainement ouverture à l’εἰσαγγελία et cette procédure permettait d’atteindre un coupable que la loi de Dracon aurait laissé impuni.’
We have seen[88] that Socrates objected to Euthyphro’s prosecution of his father on the ground that he was not a relative of the slain man. Yet Euthyphro began his prosecution nevertheless! He calls his charge a δίκη, not a γραφὴ.[89] He is consulting the King Archon at the Prytaneum. We have quoted from Demosthenes[90] a law mentioned by the Exegetae, to the effect that it was not permitted to anyone save a relative of the victim, or a master, if the victim was a slave, to prosecute for homicide. Yet the Exegetae advised the plaintiff on independent grounds. ‘As you were not present yourself, but only your wife and children, and you have no other witnesses, we recommend you not to make proclamation of anyone by name, but only in general against the guilty parties, and further not to begin proceedings before the Archon Basileus.... Our advice is that you perform the necessary religious ceremonies for yourself and your house, bear the misfortune as patiently as you can, and take vengeance if you like in some other way.’ The religious ceremonies mentioned in this passage were probably an expiation-offering to the ghost of the nurse who had been slain. If so, then the Erinnys of the dead, at least, accepted the Draconian law! Is it possible—it cannot of course be certain—that the ‘other way’ of avenging was by a γραφὴ? If this indictment could not be brought till a number of years had passed, is this the reason that the misfortune had to be borne with patience?
We have referred to a Demosthenic passage[91] in which an unsuccessful γραφὴ ἀσεβείας was brought against the uncle of a man who was alleged to be guilty of parricide. If the charge succeeded, the alleged parricide, Diodorus, assures us that he would have been put to death and that his property would have been confiscated. But there is no reference to a specific trial for parricide. Did the γραφὴ ἀσεβείας involve, indirectly, a γραφὴ φόνου?
We believe that there was not, at Athens, a γραφὴ φόνου, that is, a direct indictment of a murderer by any citizen who wished to charge him. The suit which Euthyphro brought against his father was a δίκη, which was a quasi-civil or quasi-private process, and in any case the Archon Basileus would, we feel sure, have refused to accept it. But we think that an indictment for impiety, which could be brought by any citizen against a relative of a slain man who had failed to ‘proclaim’ and to prosecute the slayer, involved, if successful, a verdict of murder against the slayer; and that it was the possibility of such indictments which led Pollux to use the expression γραφαὶ φόνου. Thus if an indictment for impiety had been brought against a relative of the nurse whose violent death is referred to in the speech of Demosthenes against Euergus, it would have involved a verdict of murder or of manslaughter against Euergus and Theophemus. This is probably the ‘other way’ which was referred to in the speech by the Exegetae.
How then do we explain the Demosthenic passage[92] with which we began our present inquiry? The essential points in this passage are, we think, the reference to the murderer as actually ‘walking about in the temples or in the market-place,’ and the implication that he was ‘proclaimed’ but untried and unconvicted. Assuming that the relatives of the slain had proclaimed the slayer but had not proceeded with the prosecution, we can understand why the normal procedure of homicide-prosecution could not have been applied. For the relatives of the slain alone had the right of direct prosecution. But if the murderer had been proclaimed, but was, for some reason, untried and unconvicted, he could, if he frequented the temples or public places, have been proceeded against directly by a γραφὴ ἀσεβείας—an indictment for impiety. For the validity of such an indictment it was necessary that he should have been formally proclaimed as a slayer by the relatives of the slain: for, otherwise, he could not be regarded as publicly ‘polluted.’ But if we assume that he was proclaimed, and that afterwards—either because of lack of evidence, or because the proper time had passed by, or simply because the relatives of the slain were indifferent (we may suppose that they were bribed by a ‘private settlement’)—he proceeded to act as if he had not been proclaimed, then it was open to any citizen to indict the proclaimed homicide for impiety, but only if he was found in the temples or the market-place. The result of a successful indictment of this kind would have been more severe than that of a successful murder-charge: for though the slayer could have saved his property, he would not have been permitted to go into perpetual banishment, but he would have been put to death.
It is therefore, we think, a γραφὴ ἀσεβείας to which Demosthenes in this passage refers. Such an indictment would have been in practice but not in theory an indictment for murder. In theory it was an indictment for impiety or sacrilege. To win the indictment it was not necessary that the plaintiff should prove that the defendant was a murderer. For a proclaimed murderer had to prove his innocence. Hence, normally, a proclaimed murderer would either have challenged a verdict immediately after accusation, or he would have fled into exile. Thus, once more, we observe that ‘private settlement’ was not only illegal but was dangerously so. If the slayer settled with the relatives of the slain, they could have been indicted; and if he frequented the temples or the market-place, he himself could have been indicted for impiety. But if he was not proclaimed by the relatives of the slain, they alone could have been indicted for impiety: yet an adverse verdict would have involved his condemnation. Such is our solution of this difficult problem.
Whether this indictment against a proclaimed murderer who had been found in a temple or a public place was brought before ‘the Eleven’ for final judgment, or whether it was referred by them, if the accused denied the charge, to the ordinary Heliastic courts, is a question which we cannot decide. Pollux[93] includes ‘the Eleven’ amongst the Heliastic judges, but Aristotle[94] implies that they could only judge when the accused pleaded guilty. If it sounds strange to say that gaol commissioners might have heard such indictments, it is, we think, not quite so strange as the fact indicated by Philippi,[95] that indictments for impiety were in certain cases heard by judges who had no other judicial qualification save the fact that they had been initiated at the mysteries of Eleusis! The passage in Andocides,[96] on which Philippi’s statement is based, certainly suggests that there were at Athens special religious or ecclesiastical courts for the trial of offences connected with ritualistic procedure, such as profane conduct or the divulging of religious secrets. The court which is described by Andocides consisted of initiated citizens, and the accusation was concerned with an offence in regard to the Mysteries. Were these citizen courts a democratic development of the Eumolpid Exegetae courts which are referred to by Lysias?[97] Very probably they were, just as the Heliasts were a democratic development of the Ephetae courts. In both cases, however, we must assume that the development did not involve the destruction of the older system of judicature, but merely reformed it by providing an option in the personnel, while retaining the traditional procedure of the court.