The main theme of the Eumenides is the trial, at the Athenian Areopagus, of the Argive Orestes who had slain at Argos his mother and her paramour, and who upon acquittal returns to Argos to occupy the throne of his murdered father. We admit that the exaltation of the Areopagus is one of the motives of the dramatist. There is much to be said for the view of Blass[36] that the conflict between Apollo and the Furies made this ‘divine drama’ worthy of Athenian interest. But we maintain that Aeschylus would not have selected such a theme for presentation to an Athenian audience, if it had not also contained a difficult legal problem which was calculated to thrill the emotions of those litigious men of Athens who were at once judges, litigants and legislators. The play was produced at the time of the curtailment of the powers of the Areopagus by Pericles and by Ephialtes. Aeschylus suggests[37] that it was this Council which held the first trial for bloodshed in a barbarian world. In this view there is no protest against the reform of Ephialtes, for such a reform seemed to recognise that homicide-trial was the sole and proper function of the Areopagus.
Whether the play was produced before or after this reform it is impossible to say. Bury holds[38] that the play is not a protest after the event, that, on the contrary, Aeschylus approved of the reform. Other scholars maintain, however, that Aeschylus was opposed to democratic interference with the established privileges of an ancient Council, and that he left Athens on this account and died in Sicily of a broken heart.[39] Our reading of the play inclines us to support the view of Jevons which will be manifest from the following extract[40]: ‘The Eumenides,’ he says, ‘was produced in 458 B.C. ... at a time of great political excitement in Athens. The oligarchical party had just been defeated on both their foreign and their home policy. Their foreign policy was alliance with Sparta.[41] The home policy consisted in opposing such changes in the constitution as would give more power to the people, and at this time also consisted particularly in supporting the powers and privileges of the Areopagus against the attacks of the democratic party.... The democrats under Ephialtes succeeded in depriving the Areopagus of its political powers, leaving to it only the right of trying cases of homicide....[42] The Eumenides is sometimes said to be a panegyric on the Areopagus and sometimes even to have been a call to all good men to join in preserving to it the political powers which it had long enjoyed. But it is probable that the Eumenides was produced after the reforms of Ephialtes: and as Aeschylus represents the Aeropagus to have been founded to try cases of homicide, the very class of cases which Ephialtes left to it, it is more reasonable to regard the play as having been intended to reconcile those who strove for the preservation of the political powers of the Areopagus to the new state of things which Aeschylus shows to be in harmony with the original nature of the court. This view receives some support from the fact that the alliance with Argos to which the oligarchic party was opposed is also shown by Aeschylus (727 et seq.) to be in harmony with tradition, myth, and religion.’[43]
Verrall takes up a similar attitude to this problem[44]: ‘It is clear,’ he says, ‘from the tone of the final scene and it is generally recognised that Aeschylus did not intend to appear at least as a partisan, that he supposed himself to be a peacemaker and to have advanced only what would be generally approved. He justifies trial by jury: he extols the Areopagus as a court of crime: he leaves room, but in vague terms, for a larger execution of its vigilant protection.... He is for the middle way, “neither tyranny nor anarchy.”... But the attitude of the poet is not that of a practical politician. Religion, always first with him, in the Eumenides covers the whole field.’
We do not agree with Verrall’s view that Aeschylus justifies ‘trial by jury,’ if Verrall means by this phrase trial by popular juries such as the Heliasts of the post-Solonian age. The Areopagus was never invaded by the Heliasts. Its procedure was fundamentally different from that of Heliastic courts. Its personnel was composed of archons and ex-archons. It is to such judges that Athene refers when she says that she will select, for the trial, the best of her citizens.[45] There was for the Areopagus no election by lot, such as characterised the popular juries,[46] nor is there in the phrase ἀστῶν τῶν ἐμῶν τὰ βέλτατα any reference to the Ephetae, the aristocracy of birth. Aeschylus either never knew, or he has forgotten, or he has perhaps deliberately ignored the aristocratic character of the pre-Solonian Ephetae-Areopagus.[47] It is the plutocratic Solonian Areopagus of the sixth century and of his own day that he puts before us. When Verrall says that ‘Aeschylus leaves room ... for a larger execution of its vigilant protection,’ he implies that Aeschylus opposed the reform of Ephialtes. As this view commits Aeschylus to the exaltation of plutocracy, we prefer, with the scholiast, to give a narrower interpretation to the phrase εὑδόντων ὕπερ ἐγρηγορὸς φρούρημα[48] and we translate it: ‘the vigilant custodian of vengeance for the slain,’ whereas Verrall takes the ‘sleepers’ to mean ‘the citizens when they are asleep at night.’
We think, moreover, that Verrall overestimates the religious as distinct from the legal aspect of the play. Apollo and the Furies seem to us to present a rather sordid picture at the trial. If Apollo had maintained his traditional rôle of Olympian autocracy, he would have been more impressive. As it is, he condescends to discuss the justice of Orestes’ act with rival deities of a quasi-diabolical type: and his arguments are rhetorical rather than logical. He advances the absurd opinion that the real parent of a child is the father not the mother.[49] This view and the similar opinion of Athene[50] may of course be explained as a characteristic sentiment of the Eupatridae, an Athenian noble caste, who were excluded from the worship[51] of the Semnai Theai at Athens, a sentiment which is here directed against the Erinnyes, by way of anticipation, in view of their prospective metamorphosis into Semnai Theai.[52] But it is more probable that the argument represents an undignified squabble between Olympian gods and Chthonian goddesses, between the deities of the ‘pollution’ religion and of new-born Greek States, on the one hand, and the old clan-ghosts who are here conceived as Titans, on the other.[53] The Furies are not even consistent with themselves. At one time[54] they pose as the avengers of all kinds of homicide: at another[55] they are only concerned with kin-slaying. The Olympian exaltation of ‘the father’ is met, swiftly and flippantly, in the manner of repartee, by an objectionable quotation from Olympian theology! ‘Did not Zeus,’ the Furies ask,[56] ‘bind in chains his aged father Kronos?’ The answer of Apollo is even weaker than the question: ‘to fetter,’ he says, ‘is not to slay....[57] Remedies for the one are easy, remedies for the other there are none!’ If then the religious aspect of the trial of Orestes had been predominant or paramount in the mind of Aeschylus, we do not think that he would have presented the gods in such a frivolous and futile manner to an audience of Athenian citizens. He would, much more probably, have followed a different form of the legend, which is found in Euripides,[58] and is mentioned by Demosthenes,[59] and which represented the Twelve Olympian Gods as the judges of Orestes’ guilt. Hence we believe that the dramatic aspect of the story was the more important one for Aeschylus. The essence of tragedy is conflict, and there is conflict in the Eumenides, between rival emotions, between rival ethical theories, between rival gods and goddesses, first, last, and all the time! But next in importance to the dramatic motive we place the legal motive of the play. We do not agree with Verrall in maintaining[60] that ‘what is certain is that in the law of the matter, the law proper, he (Aeschylus) took little interest. The ultimate issue of his play is not legal but religious.... It matters nothing that the prosecutors, in different parts of the play, assume, respecting the limits of punishable homicide, views which are not compatible: or again that the question of the validity of the oracular command, though it is a main point in the defence, and though the jury must be supposed to disagree about it, is not argued, unless contradiction is argument, at all.... On law, therefore, and the history of law, the Eumenides is but a dubious authority: and the reader or expositor of Aeschylus as such is not bound or perhaps entitled to consider the play from this point of view.’ This kind of reasoning seems to us very suggestive of a well-defined mental attitude, namely, that of a writer who knows little or nothing about law and who, in addition, does not want to know anything about it. We do not assert that the legal problems of the Eumenides are simple, but they cannot for that reason be ignored. The more difficult a problem is, the greater is the prestige of a court which can decide the issue. Athene confesses the difficulty of the problem in this play and she requests the citizens of Athens to solve it.[61] What an exaltation of religion! What a contempt for law!
The legal complexities of the trial of Orestes arise, we have said, from the circumstances which attended the evolution of the legends. The introduction of the story of Apollo’s command to Orestes was intended by the legend-makers of the ‘pollution’ era to explain and to reinforce the Homeric conception of Orestes’ act as justifiable matricide. That Apollo’s command justified his act is the legal plea of Orestes, in this play; at least, it is the predominant plea.
Thus he says to Apollo[62]:
Now give thy witness and expound the truth.
Apollo, was I just in slaying her?
To have done it I deny not. ’Tis the fact.