We shall see, later,[159] when we analyse the laws of Plato’s homicide-code and of the ancient Hebrew code that the distinction between voluntary and involuntary slaying was much more likely to have arisen in the tribal customs of village-communities accustomed to the most minute differentiations in their wergeld system than in systems emanating from centralised political or religious authority. The Homeric poems give us, it is true, no reliable evidence which would help us to arrive at a definite decision on the existence of such a distinction in early Greece, but from the passages we have cited we may at least extract a suggestion that the distinction was really appreciated, and we have suggested a source from which that sentiment may very easily have sprung.
Justifiable and Unjustifiable Homicide
We come now to a kindred problem, namely, the question whether the Pelasgians[160] were aware of a difference between justifiable and non-justifiable slaying? Most writers will admit that there was no vengeance set in motion by death on the field of battle. It was a recognised challenge of strength, an ἄγων, the issue of which was accepted as the will of the gods. But in local blood-vengeance, arising, let us suppose, out of failure to pay wergeld, or when the murderer’s clan defended him at home or did not expel him and feud followed, was there no distinction between murder and just revenge? Glotz, as we should expect, holds that there was no distinction between murder and revenge.[161] ‘Coupable ou non coupable, il est responsable. Qui a versé du sang doit du sang.’ It is thus, certainly, with modern Montenegrins, Albanians and others. But are the creators of Mycenaean civilisation to be compared with these? Glotz conceives the blood-vengeance of early Greece to be what we have called unrestricted vendetta, but this mode of vengeance is not usually associated with settled tribal communities who are otherwise known to accept wergeld, and we maintain that the Pelasgians had reached this stage at the dawn of Greek history. Glotz bases his view for the most part[162] on those numerous ‘flights’ of murderers which Homer records. Now, these references concern murderers, not avengers of murder; and there is no instance, in Homer, of an avenger of blood becoming in turn the object of vengeance. The non-Homeric instances cited by Glotz,[163] such as the trial of Ares for the murder of Halirrhothius, who had dishonoured his daughter; the flight of Hyettos from Argos to Orchomenus, after slaying Molouros, who was caught in adultery with his wife, are derived from Pausanias, Apollodorus, or Euripides, and are therefore irrelevant for the interpretation of the Homeric age.
We admit, with Glotz, that in cases of adultery and seduction slaying was unjustifiable in Homer which would have been justifiable in historical Greece. Glotz[164] points out that the system of compensation for adultery and seduction which is found in the laws of Gortyn recalls, in a certain manner, the custom applied by Hephaestus to Ares in the Odyssey.[165] He says of this system: ‘Nous y retrouvons aussi, exprimées avec précision, quelques-unes des règles que les coutumes ont transmises aux législations[166].... Entre la ποινή de Gortyne et celle de la fin des temps Homériques la ressemblance est frappante.’[167] This is as much as to say that ‘towards the close of the Homeric epoch’ custom (or, as we should say, tribal unwritten law) compelled the husband of an adulterous wife to accept, in certain cases, compensation from the paramour, and to arrest, but not to slay him. In the Odyssey,[168] Hephaestus, having surprised Ares in the arms of his wife, decides to imprison them, saying ‘the snare and the bond will hold them till her sire give back to me the gifts of wooing.’ The other gods, among whom ‘laughter unquenchable arose,’ say that ‘Ares owes the adulterer’s fine’ (μοιχάγρι’ ὀφέλλει). In the Iliad[169] the wife of Proetus falsely accused Bellerophon of attempted adultery,[170] and begged her husband to slay the offender. But Homer tells us that Proetus feared to slay him, and sent him forth to Lycia with the famous σήματα λυγρά—a written injunction to the King of Lycia to put Bellerophon to death—an act which suggests that the death penalty for adultery was not customary in Greece.[171] And surely the existence of a prescribed μοιχάγρια suggests that even amongst the Achaeans the slaying of an adulterer was unjustifiable. We may further infer that amongst the Pelasgians there existed some authority, whether tribal tradition, or clan-custom, which discriminated between the cases in which death could and those in which it could not be inflicted with impunity. The collective execution of death in case of refusal to obey clan-laws regarding the payment of wergeld, or μοιχάγρια, is a clear manifestation of that social justice which claims the right to decide between justifiable and unjustifiable slaying.
We cannot, of course, find any evidence in the Homeric poems for a tabulation of instances of justifiable homicide such as is found in the laws of Dracon.[172] But the Homeric poems present us with a picture which is mainly, if not exclusively, Achaean, and we cannot infer from the absence of Homeric evidence that the Pelasgian tribes which had developed, as we think,[173] a capacity for discriminating between degrees of homicide guilt, had not also evolved a definite conception of the distinction between just and unjust slaying. We shall see[174] later that even the Achaeans recognised at least a distinction between murder and just revenge. Thus, the Achaean Orestes who slew his mother to avenge his father is said by Homer to have ‘gained renown amongst all men.’[175] In the Odyssey,[176] Amphinomus, one of the suitors, refuses to join a conspiracy to murder Telemachus without consulting the gods: ‘I for one would not choose to kill Telemachus: it is a fearful thing to slay one of the stock of kings: nay, first let us seek the counsel of the gods, and if the oracles (θέμιστες) of great Zeus approve, myself I will slay him and bid all the rest to aid; but if the gods are disposed to avert it, I bid you, too, refrain.’ The θέμιστες here attributed to Zeus must be regarded as a reflex of the public opinion of the Achaean caste, which, therefore, had evolved a distinction between just and unjust slaying. In another place[177] Eupeithes, the father of a slain suitor, says ‘It is a scorn if we avenge not ourselves on the slayers of our sons and brothers; rather would I die!’ It is obvious that an act which is a duty prescribed by caste or law or custom cannot be regarded as a crime. So,[178] when the feud arose between Odysseus, who regarded himself as justified in slaying the suitors who had insulted his family, and the suitors, who were contriving what they considered a just revenge, Homer tells us that Odysseus would have slain them all, had not Athene intervened and ordered both sides to desist and to enter into a solemn covenant of reconciliation. This act of Athene[179] signifies that in her opinion both sides are justified in shedding blood, and hence that the feud can be cancelled without disturbing the balance of justice. Now Glotz[180] rightly points out that the ancients attributed to their gods such opinions as they themselves professed; and if Achaeanised Athene acted thus, how can we avoid assuming the existence of at least as high a standard amongst the Pelasgians? In Homer then we may conclude that there existed some distinction between just and unjust slaying. For Glotz, this distinction arises only when the State takes justice into its own hands and legitimatises private vengeance after trial. The date of this evolution, he thinks, is the age of Dracon. But we maintain that, long before Dracon, or perhaps even before Homer, there existed, in Greece, States within States, that is, clans and tribes and phratries, whose interest it was, at the dawn of civilised society, to create the distinction between justifiable and unjustifiable bloodshed, which is so vital to domestic peace.
Collectivity in Vengeance
Nothing that has been said in this chapter is incompatible with the view that punishment, in early societies, tends to be collective and hereditary. Feuds of blood must have occasionally occurred amongst the early Pelasgian folk, but we cannot ignore the control of tribal authority, and the Achaean domination which may have acted as a check. However, it is one thing to declare war on a group which refuses to fulfil the law of a district or of a tribe; it is quite another thing to refuse the ‘satisfaction’ prescribed by custom, and to make a single murder an invariable cause of incessant bloodshed. This is the state of Homeric society as conceived by Glotz, and by most writers on the subject of early Greek homicide. We prefer to emphasise the triumph of reason over passion which is symbolised by a wergeld system of local vengeance, by the worship of common ancestors, real or fictitious, by the early political synoekism of many Greek districts, and by international Amphictyonies of immemorial antiquity. We think that it was in post-Homeric times, when the Achaean control was removed, and the Migrations broke up the solidarity of Pelasgian clans, that Greek societies developed unrestricted vendetta. Glotz[181] has difficulties about the Homeric age. He has to admit that there is no infallible system of collective punishment in Homer. ‘Dans l’Iliade et dans l’Odyssée,’ he says, ‘les querelles strictement personnelles ne lient plus infailliblement au sort de l’offenseur tous les siens. On n’y voit point, après un meurtre ἐμφύλιος, les vengeurs du sang poursuivre la famille du meurtrier.’ The difficulty is obviated by our theory of Achaean restricted vendetta. The vengeance of Achilles[182] for the death of Patroclus is no objection to our theory, as it is not revenge for homicide proper: war is distinct from peace. Achaean kings confiscate property, transfer and destroy whole cities[183]: this is but the autocracy of a quasi-feudal militarism; it is not a punishment of moral guilt.
Euripides[184] makes Tyndareus utter a sentiment regarding the legitimate modes of homicide-vengeance which seems to us to be very applicable to early Greek societies. Tyndareus objects to the infliction of death as a penalty for the slaying of Agamemnon, on the ground that such penalties, in the absence of State-control, would inevitably lead to an indefinite series of retaliations. ‘Right well,’ he says, ‘did our ancestors in olden times enact these ordinances ... they punished (the murderer) with exile, but they suffered no one to slay him in return, for (in that eventuality) each successive avenger would be liable for bloodshed.... I will support the law, and try to check this brutal murderous practice destructive alike of individual States and of the world.’ We shall see later[185] that Euripides is either consciously archaising in this passage or that the view of Tyndareus was somehow preserved in the legend which the dramatist follows. In either case, it seems to us to contain a valuable principle regarding the fear of unrestricted vendetta, of collective and hereditary punishment, which is found in civilised tribal societies in a condition of private vengeance. Such societies have either to abandon civilisation, and to fall back into a chronic state of chaotic barbarism, or to adopt a system of ‘social justice’ which, by definite rules and regulations, expressive of tribal authority, by public opinion and religious sanctions, prevents, as far as possible, the innocent from suffering with the guilty.
The penalty of wergeld was, in a certain sense, collective because it was diffused throughout the kindred. But this penalty is clearly far removed from the collective punishment of a barbarous hypervengeance. It arises, we have said, from the simple fact that property, in early society, was to a great extent collective or common; and also from the fact that the individual of tribal life was not the isolated personality which feudal and modern civilisations have evolved, but was rather a branch of one great wide-spreading tree in which he lived and moved and had his being. Finally, in regard to the Homeric society, we must remember that the Achaeans stood on quite a separate plane. Amongst them there is little or no suggestion of collective punishment. Achaean military discipline prevented it. Such traces of this punishment as are found in many later legends must be attributed, as we shall see, to post-Homeric influences.