Talthybius, the ubiquitous herald, sets his sails to the wind, but he cannot, unfortunately, decide how the wind is going to blow. He does not approve of the vengeance of Orestes, because, he says,[67] it establishes a bad precedent in regard to parents. This viewpoint ignores the distinction between murder and vengeance. Orestes is conceived as a matricide, pure and simple, and being a matricide his guilt is greater than that of Clytaemnestra. It is regrettable, of course, that Agamemnon was slain, but Clytaemnestra, his slayer, was not his daughter, but only his wife! The Erinnyes, in Aeschylus,[68] advance a similar argument, but in the Orestes such reasoning is more logical because the Argive court interprets the vengeance of Orestes as an act of barbarous vendetta and assumes that such a mode of vengeance was already obsolete and unlawful in his time. It is only by assuming that Orestes and Clytaemnestra were both criminals that one can logically compare the act of Clytaemnestra with that of Orestes and maintain that the act of Orestes was, because of blood relationship, more criminal than that of Clytaemnestra. It is thus that Hesiod,[69] living in an age of chaotic vendetta, would have singled out for special condemnation the shedding of kindred blood. In the Aeschylean drama, on the other hand, and therefore, as we think, in the Attic legends of Orestes, ‘private vengeance’ is not definitely and dogmatically assumed to have been obsolete and unlawful in the time of Orestes. There is of course a doubt about the matter such as would naturally have arisen amongst legend-makers of the transitional seventh century. This doubt is, naturally enough, availed of by the Erinnyes of the slain. But Apollo has no doubt about the matter. In the interests of justice he commands a ‘private’ avenger to avenge.
After Talthybius, Diomedes utters a speech[70] in which he attributes the guilt of matricide not only to Orestes but also to Electra, and proposes not indeed that they should be put to death, but that they should be banished from the city of Argos. He suggests, very curiously, that the death penalty would be impious! It is difficult to find any legal justification for this view. It is quite possible that Euripides is depicting for dramatic purposes, with a complete disregard for law, a variety of possible penalties. In Attic law a criminal who was convicted in a matter of grave import was punished by a general penalty of ἄτιμία, or loss of citizen rights; in some cases, such as parent-slaying, this degradation of civic status involved death and confiscation of property: in other cases, such as sacrilege, it involved death without confiscation; in ordinary wilful murder, it involved either death or banishment and confiscation, and in cases of malicious wounding the penalty of ἄτιμία denoted simple banishment without confiscation. It may be, then, that Euripides is applying such a gradation of penalties[71] to a period when the penalties for crime were not rigidly fixed.
If we suppose that in this speech of Diomedes Euripides is consciously archaising, his archaism is not very felicitous. For kin-slaying amongst Pelasgian clans, we have seen,[72] the normal penalty was exile: for kin-slaying amongst the Achaeans, the penalty was death. In historical times, when private vengeance gave place to State execution, the penalty was invariably death. Hence, Diomedes’ reference to impiety can become legally intelligible only if it is interpreted according to the standpoint of the tribal renaissance of post-Achaean days, when the group-system resumed its sway. From such a standpoint the act of the Achaean Orestes would have been viewed as matricide by the Elders of the tribe and in the public opinion of the clans. If a tribal court sat in judgment on Orestes in, say, the year 1000 B.C. and discussed the penalty which his act deserved, it would have been natural to suggest the exile penalty which was the normal punishment for kin-slayers. If then Euripides has been so very subtle in his archaising as to have attributed this proposal to the Argive Diomedes, he might at least have selected for the mouth-piece of this utterance someone whose name was not so inextricably connected with the Achaean domination!
After Diomedes, there rises up a bold bad man whom the messenger describes as ‘an Argive who was not an Argive’[73] and who is generally supposed to typify, in Euripides’ view, the Athenian demagogue Cleophon.[74] His speech, we are told,[75] had been previously prepared for him by Tyndareus, who, though the nearest kinsman of the slain Clytaemnestra, does not speak at all at this assembly! His nameless subordinate, however, proposed[76] that Orestes and Electra should be stoned to death. This was the opinion which in a modified form the assembly ultimately adopted,[77] though only one speaker actually proposed it. Orestes succeeded in obtaining his request that he, together with his sister Electra, should be allowed to end their own lives in a respectable manner.
The penalty of death by stoning is not mentioned in Homer, in Attic law, or in Plato’s laws. Was it, then, mentioned in an Argive legend or did Euripides invent it? The penalty may have existed in the antique system of tribal vengeance. Plato assures us[78] that the slayer of a parent or a kinsman was stoned, after death, by the judges and the magistrates. This custom was probably a survival of the more primitive custom of stoning criminals to death. If the Argive legend of Orestes did not mention such a penalty, Euripides is either archaising on the basis of this survival or is importing into the drama an idea which he derived from the crude customs of outlying ‘barbarian’ lands.
The sentence of the Argive court permitted suicide as an alternative to execution. We do not know of any legal basis for this option. We have no reason to doubt that suicide was always in practice, if not in theory, accepted as an alternative for execution in historical Greece. Here, however, the theory is accepted by a homicide-tribunal.
Before the verdict of the court was given, a nameless man, for whom Euripides clearly feels much admiration,[79] a small farmer by occupation, proposed to crown Orestes because he avenged his father by slaying his impious mother, whose adulterous criminality was fatal, he said, to the interests of a martial or militaristic society. We have said[80] that the legal aspect of the vengeance of Orestes is complicated to some degree by the fact that his mother was an adulteress. We have argued[81] that death was not the regular penalty for adultery in Greek tribal life, and we do not think that the Achaeans, like the German tribes, followed a sterner code. It is difficult to derive any deductions either in regard to homicide or to adultery from this argument, because adultery and murder are mentioned in conjunction. The following words of the nameless speaker[82] seem, however, to imply that adultery required a more serious punishment than that which custom sanctioned:
For who in distant fields, at honour’s call,
Would wield his martial arms if in his absence
Pollution stains his wife and his pure bed