Why then, we may ask, did Solon select the Areopagus as the court in which the Ephetae were compelled to give place to plutocratic ex-archons, and why was the jurisdiction of that court, now perhaps for the first time, limited to cases of homicide ‘with malice aforethought’? Müller[146] offers a solution of this problem. ‘The administration,’ he says, ‘of the rites of expiation could not be taken away from the old aristocracy of Athens even when the constitution underwent in other respects a complete change. None but an aristocratic court was competent to pronounce an act of homicide expiable, and itself to preside over the rites of expiation and cleansing. Accordingly, the cases reserved for the decision of that court were those in which a person was accused of unpremeditated slaying—for here expiation came in after the exile; further, where the plea put in by the accused was that of justifiable homicide—in this case there was no punishment ... but still it was necessary, at least in certain cases, that he should undergo purification: further, in case an unpremeditated was followed by a premeditated act of homicide, it being then a question whether expiation was admissible or not: lastly, the formalities observed in trials of the weapon by which blood was shed ... necessarily devolved upon the managers of the ancient rites of expiation. As wilful murder, on the contrary, could not be expiated ... there was no need in this case to refer to expositors of ancient Sacred Law. So that Solon was at liberty here to vest the cognisance of such cases in a corporate body which ... he formed out of the most affluent Athenian citizens who had filled the offices of archon.’
This hypothesis is very ingenious. We have little doubt that there is a large substratum of correctness in its underlying principle—namely the association of the old nobility with ‘purgation’ rites. But surely the court of Phreatto was not based on the probability that purgation would have followed the trial. Again, the Palladium frequently tried cases of wilful murder between metics and between foreigners. These murderers could never have been purged at Athens, since the deed was committed there. Moreover, all these Ephetae courts, except the Prytaneum, could, in all probability, have brought in a verdict of wilful murder, just as the Areopagus could have acquitted the defendant and admitted him therefore to some kind of ‘purgation’ at the shrine of the Semnai Theai. Furthermore, Müller is not quite consistent with himself in associating purgation exclusively with judges as in this quotation, and in maintaining elsewhere[147] that the three Exegetae who supervised those rites were not judges[148] at all. By his own reasoning, therefore, he would be compelled to admit that the Exegetae could have cleansed the accused after acquittal in any court. Again, he holds[149] that in early Attica there was no discrimination between murder and manslaughter, and that the same courts originally tried all these different pleas; but yet he maintains that a certain distribution of functions which was based on this discrimination had already taken place in the time of Solon.
We believe that a discrimination between different degrees of homicide guilt was recognised in early tribal Attica, and that in the seventh century B.C., when a compromise took place between what we may call Apollinism and tribalism, the Apolline religion was compelled by tribal aristocracy to define the kinds of homicide to which purgation could be applied. Moreover, the detailed formulae and ritual of purgation were confided as a secret and sacred trust to this aristocracy. But even within an exclusive nobility there must eventually arise a division of labour. The same nobles who judged a suit might also be appealed to for purgation, and hence they probably found it more convenient to delegate the latter duty to one particular family or clan. Most especially would the Ephetae of the Areopagus, who in those days held in their hands the reins of civic government, have found it difficult to discharge at once the various duties of a Council of State, of homicide judges, and of purgation priests. Hence, therefore, we may assume that the Ephetae-Areopagus limited its activities as a homicide-court and confined itself to charges of wilful murder, of plots to kill, and perhaps also of arson, between the citizens (who were, originally, the nobles), not merely because of the necessity for a division of labour, but also because the Areopagus court was the supreme Council of the State. To the other courts, therefore, fell the duty of trying minor homicide cases, and such cases as were more likely to require purgation. Thus, wilful murder between foreigners was comparatively a minor issue, and was no longer tried by the Areopagus. Such cases were relegated to the Palladium court, perhaps because it lay outside the city.[150] Again, charges of murder which were brought against a person already convicted of manslaughter were naturally tried at Phreatto, as such a slayer was not permitted to land in Attica. It was in some such way as this, we think, that a traditional custom had grown up in regard to the distribution of homicide pleas among different courts in the time of Dracon and of Solon. Solon made the Areopagus the basis for a reform which was directed against the old nobility, partly because it was feasible to introduce innovations into this court with the least possible interference with existing religious traditions, but even more so because the Ephetae-Areopagus was the keystone of the fabric of aristocratic power. Here, despite the advancing influence of the Senate of Four Hundred with its increasing executive and administrative powers, the old nobility retained the strongest outpost of authority in a court which, amidst other privileges, possessed the right of final decision in matters of life and death. This right of final decision was not a privilege of the new Solonian Areopagus—it was transferred to the popular Heliastic courts. The innovations of Pericles and Ephialtes in 460 B.C. reduced the Areopagus almost to the level of a simple homicide court[151]: yet its personnel, which was composed of ex-archons, enabled it as a judicial body to command general respect. But it was, nevertheless, the traditions and the religious procedure of the court which lifted it above the level of the Crush and the Triangle. This theory, which we have propounded, of the origin and evolution of the Areopagus is in perfect harmony with the statement of Demosthenes[152] that: ‘neither tyranny nor oligarchy nor democracy have ventured to deprive this tribunal of its jurisdiction in murder.’ But Gilbert’s theory[153] of Draconian interference with the judicial powers of the Areopagus is not consistent with this statement. The opinion of Pollux[154] and of Plutarch[155] that there was no Areopagus court before the time of Solon contains at least an important element of truth, since it may be taken to imply that the Areopagus of historical times, the personnel of which was composed of ex-archons, did not exist before the time of Solon. The pre-Solonian Areopagus was not in our opinion really distinguishable from the Ephetae. Hence, there is a sense in which the statement of Pollux is true, that in Solon’s time ‘the Ephetae sat in the five murder courts.’[156]
We have now sufficiently indicated the methods and laws of Greek blood-vengeance in the post-Homeric epoch and in historical times. We may, therefore, proceed to examine and, if possible, to explain the problems of blood-vengeance which are presented by Attic tragedy. In our account of Homeric homicide we found it necessary to distinguish between a military dominant Achaean caste on the one hand, and a subject Pelasgian tribal people on the other. In our exposition of post-Homeric and historical developments we found it indispensable to distinguish the post-Achaean and Hesiodic periods from the ‘pollution’ era and to regard the final evolution of historical Greek murder law as a resultant compromise between divergent forces. When we turn to the legends which are given by the Attic tragedians, we must be prepared to consider the operation of several distinct alternative factors in the creation of these legends. Some legends are presented to us in a form which seems quite consistent with the period to which they refer, either because they came down comparatively unadulterated through the ages or because the dramatist consciously and correctly archaised. Other legends, however, become so adulterated in course of time that they are difficult to analyse and their evidential value is very small. Again, different myths about the same event assumed, in different places and at various times, forms which were legally, at least, incompatible. It was open to the dramatists to make a selection from amongst the most suitable varieties of the legend; but they naturally aimed at consistency in characterisation, rather than at harmony in their legal conceptions. As a result of the variety of inconsistent legends it was obviously impossible for those dramatists to fulfil the maxim of Horace[157]:
denique sit quidvis, simplex dumtaxat et unum.
FOOTNOTES
[4] Eum. 688.