Neither can we put forward as evidence for the Pelasgian exile penalty for homicide the passage in the Iliad[125] in which Priam’s inexplicable appearance before Achilles and his friends evokes in them an emotion which Homer compares to the amazement (θάμβος) felt when a man ‘slays one in his country and goes into exile to the house of a rich man[126] and wonder possesses them that look at him.’ The amazement here described would be equally natural whether the stranger was an exiled Pelasgian or, as Leaf suggests,[127] an Achaean fleeing for his life. Moreover, suspicion has been thrown upon the whole passage by the reference, in two scholia, to ‘purification,’ which has led Müller[128] to infer that the scholiasts read, in their texts, ἁγνιτέω instead of ἀφνειοῦ. We hope to show later[129] the error of Müller’s view that purification for homicide was a characteristic of the Homeric age, and hence we maintain that either the whole passage is a later interpolation or that the reading ἁγνιτέω found its way into some Homeric texts from a marginal gloss of post-Homeric origin, suggested by a false interpretation of the word ἄτη in a preceding verse.
Hence, while the poems of Homer indicate beyond reasonable doubt the existence of a genuine Pelasgian exile penalty, it is significant that the poet of the Achaeans tends to ignore the exile[130] alternative as he tends also to ignore the wergeld alternative, in the system of penalties for homicide adopted by a tribal people outside the Achaean caste.
Voluntary and Involuntary Homicide
It is generally[131] asserted that primitive societies recognise no distinction either between wilful murder and manslaughter (which presumes a certain degree of guilt), or even between wilful murder and accidental slaying. The reason assigned is that bloodshed, even in comparatively advanced civilisations, is a ‘civil’ rather than a ‘criminal’ offence—a matter for damages and compensation rather than for exemplary punishment. Thus Glotz[132] says: ‘L’intention n’est rien: le fait est tout. Pas de circonstances atténuantes. Nulle différence entre l’assassinat lâchement prémédité et l’homicide involontaire.’ To the possible objection that the distinction is found in Greek legends, as given by Aeschylus, Apollodorus, Pausanias and others, he replies that these legends are of late origin—a view which is not quite consistent with his usual attitude.[133] He thinks that those legends were invented by the Athenians to restore the history of the Areopagus, the Palladium, and the Delphinium courts.[134] He attributes the moral distinction, which these courts are assumed to imply, between voluntary and involuntary homicide to a period ‘not much anterior to Dracon,’ but he admits that the idea was being developed before that time in ‘family law’—that is, in clan justice. He seems to us rather inconsistent in holding that ‘dans les lois sur l’homicide (de Dracon) apparaît pour la première fois la distinction du meurtre prémédité et du meurtre involontaire,’ and in maintaining at the same time that it was a ‘principe lentement élaboré dans la justice sociale.’[135] The distinction was developed, he thinks, not from any philanthropic motives but only because private vengeance was abolished and the newly established power of the State sought thereby to restrain the taste for blood. Now we may admit, with Glotz,[136] that the distinction is a late development in most races whose social customs are known to us—for instance, amongst the Germans, the Slavs, the Celts, the Scandinavians, and the Ossetes. France does not seem to have recognised the distinction in its written laws before A.D. 819. In feudal England it does not make its appearance before the time of Henry VIII.[137] But Seebohm[138] shows that in the Lex Wisigothorum (about A.D. 650) ‘a homicide committed unknowingly (nesciens) is declared to be ... no cause of death. “Let the man who has committed it depart secure.”’ The introduction of Roman law may have caused this innovation, for Roman law admitted the distinction from the time of the Twelve Tables[139] onwards, and this code was still operative amongst Gallic peoples when they were conquered by the Wisigoths.[140] From Beowulf, however, Seebohm[141] infers that in Scandinavia within the clan ‘accidental homicide does not seem to be followed even by exile.’ The poem says[142]: ‘Hæthcyn by arrow from hornbow brought him (Herebeald) down, his near kinsman. He missed the target and shot his brother. One brother killed the other with bloody dart. That was a wrong past compensation.... Any way and every way it was inevitable that the Etheling must quit life unavenged.’ In this case, of course, there could be no question of wergeld.
In the ‘Canones Wallici’[143] (Celtic laws of the period A.D. 700-800), which are based on the tribal wergeld system as adopted by the Church, we find this clause: ‘Si quis homicidium ex intentione commiserit, ancillas III et servos III reddat.’ This implies a different penalty when murder was not ex intentione.
The Brehon laws[144] contain minute distinctions of payment in different cases of wounding. If a bishop’s blood was shed in certain quantities, the guilty person had to be hanged or to pay seven cumhals (slaves)—or their equivalent in silver and gold: if a less quantity of blood was shed, the aggressor was condemned to lose his hand. If the blood of a priest was shed in certain quantities, the criminal’s hand was cut off or seven ancillae paid, if the act was intentional; if it was not intentional, one ancilla sufficed for compensation. It is clear then that this distinction is not always absent even in a wergeld system where the crime of bloodshed is particularly objective. We have seen[145] that wergeld often carried with it an ‘honour-price,’ an atonement for the insult, which was caused by homicide. This price, it seems to us, could easily admit of a modification of the penalty. Moreover, it is possible that wergeld is not always to be regarded as a measure of the loss sustained by a clan, but as also to some extent a ransom of the prisoner’s life. ‘Partout,’ says Glotz,[146] ‘la composition varie selon le rang de la victime: et selon le rang du coupable: elle est à la fois la rançon du meurtrier et le prix du sang versé.’ For the Germans, according to Coulanges,[147] ‘la composition est un rachat, non pas rachat de la victime mais rachat de la vie du coupable.’[148] Is it not natural to suppose that a system of compensation for homicide which contains such minute differentiations would leave the road open for a discrimination as to degrees of guilt?
It is time to ask whether Homer has anything to say of this distinction. We will admit that he says nothing which is directly relevant to the question. But we will examine two passages with a view to showing that the distinction was known outside the Achaean caste.
The first passage is from the Odyssey[149] and is concerned with King Oedipus the parricide and with his punishment. Odysseus narrates how, in Hades, he saw Epicaste, and how ‘he that had slain his father wedded her and straightway the gods made known these things to men. Yet he abode in pain in pleasant Thebes, ruling the Cadmeans, by reason of the baneful devices of the gods. She indeed went down to Hades ... but for him she left behind many a woe, such as the Erinnyes of a mother bring to pass.’ Of all forms of homicide, that by which a son deprived a parent of life was regarded as the most horrible. Probably even the Achaeans, as we shall see presently, felt a certain horror at the thought of parricide. Homer, then, cannot understand why the gods, who had taken the trouble of revealing the crimes of Oedipus, nevertheless permitted, if they did not encourage, his continued rule over the Cadmeans. All other parricides of whom Homer had ever heard had taken to flight! And what was the pain which Oedipus endured? Was it remorse of conscience? Or was it his self-inflicted blindness? Euripides[150] tells how the sons of Oedipus confined their father under bolts and hid him away that his sad fate might be forgotten. We shall see, later, when we analyse the Oedipodean legends as given by the Attic dramatists, how Oedipus is filled with natural grief, but is free from that sense of moral guilt which we should expect him to have felt. He constantly pleads that he did not know that the man whom he slew was Laius, his father. Was this plea invented in later years, or was it part of the original legend? Seebohm[151] has told us that in primitive clan societies ‘accidental homicide within the kindred does not seem to be followed even by exile.’ Was it, then, because of ‘accidental’ or involuntary[152] parricide that Oedipus continued to rule over the Cadmeans? Oedipus was not an Achaean. Minoan or Cadmean, which was he? It does not matter, for our purpose, if he obeyed the ‘dooms’ of private vengeance in tribal society. Homer is equally vague about the working of the mother’s curse. Why did Epicaste curse Oedipus? The Attic dramatists do not mention this. Oedipus is cursed in Homer for one reason, and, as we think, for one reason only. It is because other slayers of kinsmen who did not suffer punishment were usually cursed. Thus Meleager, who in a quarrel slew his uncle, was cursed by his mother Althaea.[153] It is an Homeric maxim that the Erinnyes command men to honour their parents.[154]
The second passage which we shall cite is from the Iliad,[155] a passage in which the ghost of Patroclus tells Achilles how his father Menoitius brought him away from home to the realm of Peleus on the day when he slew the son of Amphidamas, though he was but a boy and did not intend it, and was angry over dice.[156] As this is the only passage in Homer which contains an explicit reference to involuntary homicide, and as the slayer is compelled to flee for ever precisely as if the act had been wilful murder, this passage has been quoted[157] as a proof that in early Greece there was no distinction made between murder and manslaughter. If, however, we are right in our discrimination between the Pelasgian and the Achaean attitudes to homicide, it would almost seem as if the passage could be regarded, not indeed as a proof, but perhaps as an indication, of the existence of this distinction in Homeric Greece. May we not suppose that the words of Patroclus are not an expression of subjective innocence by a member of a caste which regarded only objective facts, but a ‘reminiscence’ of a higher ethical code which obtained in the tribal villages around the fortress, and which had enshrined itself in the language which the Achaeans learned from the Pelasgians? In the words of Patroclus we think we can find an echo of a distinction which, in later times, is made the basis of grades of penalties in certain laws of homicide. Plato, whose penal code is probably modelled on the unwritten laws of tribal institutions, points out that a person who slays another in a passion but with intent to kill shall be exiled for a period of three years, while a person who slays in a passion without intent to kill is punished by exile for two years. He adds that ‘it is difficult to give laws on such matters with accuracy.... Of all these matters, therefore, let the guardians of the laws have cognisance ... and let the exiles acquiesce in the decisions of such magistrates.’ We cannot, of course, ignore the main fact given by Homer that Patroclus was compelled to flee from death because of involuntary or quasi-involuntary homicide. But Patroclus was an Achaean and we do not associate with the Achaeans any tendency to discriminate between degrees of guilt. The Achaean system of military control within a small dominant caste was merely capable of preventing indefinite retaliations. It was not interested in homicide as an offence against the stability of social organisations. It had no homicide tribunals, no elaborate code of penalties. We could not expect it to manifest any subtle power of delicate discrimination. It is possible that the military system of historical Sparta was equally crude in its conceptions of homicide-guilt as it was, apparently, equally severe in its punishment.[158]