CHAPTER IV
JUDICIAL ASPECT OF HOMICIDE IN EARLY GREECE
Current views criticised: author’s theory based on distinction between Achaean and Pelasgian societies: arguments from survivals in historical times: meaning of δικασπόλοι βασιλῆες: the Trial-Scene in the Homeric Shield of Achilles: origin of trials for homicide.
In discussing the trial-scene which is found in Homer’s description of the Shield of Achilles,[1] we were compelled incidentally to give, in anticipation, the main results of our inquiries as to the existence, in Homeric Greece, of tribunals for the trial of homicide. Previous writers on the subject, who are unaware of the differences in the organisation and nature of Pelasgian and Achaean societies, have naturally maintained that homicide in early Greece was entirely a ‘private’ affair and that trials for homicide only arose when a post-Homeric conception of murder as a ‘pollution’ compelled an investigation on the part of kings and nobles who were anxious to avert the wrath of the gods. Thus Bury says[2]: ‘This notion of manslaughter [i.e. homicide] as a religious offence necessarily led to the interference of the State. For when the member of a community was impure, the stain drew down the anger of the gods upon the whole community, if the unclean were not driven out. Hence it came about that the State undertook the conduct of criminal justice.’ Jevons[3] propounds a similar view, though he apparently finds more difficulties in the Homeric text. ‘There was, indeed,’ he says, ‘no State power to which the relatives of the deceased could appeal for redress, much less was there any State power which of its own motion undertook to apprehend and punish the murderer. But in Homeric times a feeling was gathering that murder was an offence against the members of the community in their collective capacity.’ Bury’s general view-point is that homicide was the only crime which called for State interference, and that there was no such interference before the doctrine of pollution arose. Other ‘crimes,’ he thinks, continued to be ‘private’ affairs until the centralisation of government brought it about that the injured party, before punishing the offenders, had to seek State authorisation in the form of trial, but in such cases the State never acted on its own initiative or responsibility. ‘It must be borne in mind,’ he says,[4] ‘that, in old days, deeds which injured only the individual and did not touch the gods or the State were left to the injured person to deal with as he chose or could. The State did not interfere. Even in the case of blood-shedding it devolved upon the kinsfolk of the slain man to wreak punishment upon the slayer. Then, as social order developed along with centralisation, the State took justice partly into its own hands: and the injured man, before he could punish the wrong-doer, was obliged to charge him before a judge, who decided the punishment. But it must be noted that no crime could come before a judge unless the injured person came forward as accuser. The case of blood-shedding was exceptional, owing to the religious ideas connected with it. It was felt that the shedder of blood was not only impure himself, but had also defiled the gods of the community: so that, as a consequence of this theory, manslaughter of every form came under the class of crimes against the religion of the State.’ Bury does not define precisely the time at which homicide became a religious offence, but from this and other references we assume that he regarded the period as post-Homeric. Thus he says[5]: ‘According to early custom which we find reflected in Homer, murder and manslaughter were not regarded as crimes against the State, but concerned exclusively the family of the slain man.... But gradually, as the worship of the souls of the dead and the deities of the underworld developed, the belief gained ground that he who shed blood was impure and needed cleansing.... This notion of manslaughter as a religious offence necessarily led to the interference of the State.’ We admit, of course, that there could not have been State trial before the State came into being; but the notion that there were no ‘trials’ before the days of ‘State trial’ is, we think, one of the delusions which modern minds have derived from the legacy of feudalism. Bury admits the existence of religious courts before the period of State courts, but he apparently forgets the courts of the clan, of the phratry, and of the tribe.
It is frequently suggested that the right of sanctuary is the ultimate origin of the trials and negotiations which came to be associated with homicide. ‘Among the Greeks,’ says Gilbert,[6] ‘when blood was shed, the relatives of the murdered man usually set themselves to wreak vengeance on the murderer. If he did not quit the country immediately, he could only secure himself by taking refuge in a sanctuary until he had made compensation to the relatives of his victim. From his sanctuary, protected by the right of asylum, he could enter into negotiations with them as to what compensation must be paid. When the State took into its own hands the regulation of vengeance for bloodshed, it respected the right of sanctuary in so far that the three places[7] of trial were connected with three sanctuaries.’ Now we can find no evidence for the operation of a right of sanctuary in Homer. Hence this theory of Gilbert would compel us to believe that not only murder trials but even wergeld payments were of post-Homeric origin!
Glotz,[8] in a passage which we have already quoted, refuses to see in the subjugation of blood-lust which is involved in the acceptance of wergeld, any suggestion of the interference of ‘social justice,’ whether to impose or advise a settlement, or to fix the amount of compensation. He holds, moreover, that in no case is exile authorised: that it is always a flight from the natural penalty, which is death. ‘L’exil,’ he says, ‘dans ces conditions, n’est pour le meurtrier ni une peine ni un droit, mais une mesure de prudence ... on ne peut obtenir l’autorisation de s’en aller tranquillement ni de revenir jamais.’[9] It is only, he implies,[10] when the idea of pollution abolished the arbitrary nature of State jurisdiction that the offended party was forced by public opinion to accept the customary wergeld. It is only then that a person wrongly accused could appeal to judges who must hear the case. Thus he says: ‘C’est un fait assez fréquent dans l’histoire qu’à l’origine de la législation sociale il y ait une révolution religieuse ... mais la révolution qui en résulta fut diffuse. Elle ne fut personifiée que par un dieu. Vers les temps où la Grèce commence à se purifier et à demander au ciel un supplément de justice pour la terre, elle voit sur son horizon rayonner d’une lumière inconnue le sévère et doux guérisseur du mal et de la souillure, Apollon.... Il exige que tout crime soit expié et s’en prend au peuple qui manque à ce devoir.... L’expiation, il la fait consister, chaque fois qu’il peut, à élever un sanctuaire: par là il donne aux dieux leur part de la ποινή et aux juges la première idée de l’amende, en même temps qu’il multiplie les lieux d’asile et fait servir l’homicide même à sauver des vies humaines.... Tandis que le droit religieux absorbait la plus grande partie de la θέμις familiale pour la transmettre à la δίκη sociale, la juridiction de l’Etat perdait son caractère d’arbitrage.... Sous la pression de l’opinion publique ... l’offense fut tenu de plus en plus strictement d’accepter une transaction aux conditions modérées de la coutume ... l’offenseur qui trouvait exorbitantes les exigences de l’offensée put rejeter une αἴδεσις trop onéreuse: l’innocent qui ne croyait devoir aucun dédommagement put refuser le paiement d’une ποινή injuste, sans craindre la mort ou l’exil.... Le recours en justice, de facultatif qu’il était, devint obligatoire par sa fréquence même. A ce moment, le tribunal des gérontes, sentant son pouvoir plus ferme, franchit par un empiètement fatal et naturel les limites étroites où sa compétence était primitivement circonscrite.... La juridiction criminelle est créée.’
We shall see later[11] how impossible it was that wergeld could have continued to exist in days when the murderer was polluted. We admit that the Apolline murder-code did absorb much of the clan-customs in regard to homicide (la θέμις familiale). But from the account which we have given of the wergeld system,[12] it must be obvious how very non-arbitrary was the jurisdiction of the clans. In our view, the evolution of early Greek judicial authority is not a transition from a crude arbitrary local jurisdiction to an efficient central compulsory jurisdiction, but rather a gradual extension to wider areas, in accordance with increasing political synoekism, of the judicial functions which had been previously discharged with equal authority within smaller areas.[13] The court of Elders, to which Homer refers in his description of the Shield of Achilles, was, in our opinion, a city-state court. We may call it merely a city court if we wish to retain the word ‘State’ to denote a political unit exercising authority over a substantial territorial area, and it is in this sense that the word ‘State’ is generally used: but F. de Coulanges has shown that the difference between the ancient ‘city’ and a ‘State’ was one of degree, not of kind. The ancient ‘phratry’ was, he says,[14] ‘a small society modelled on the family.’ Maine,[15] speaking of the primitive Indian Village Community, says: ‘The Community is more than a brotherhood of relatives and more than an association of partners. It is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties.’ So, we think, the court which Homer describes had the highest jurisdiction in all matters of serious dispute, whether within the city proper or in rural areas which were politically united with the city. The elders of the trial-scene were, we think, tribal chieftains, like the Attic tribe-kings (φυλοβασιλεῖς), and their main function was to arbitrate, but with full authority, in cases of dispute between people of different clans or phratries. Inside the clan, and probably inside the phratry (a group of neighbouring clans), similar assemblies of interested and responsible persons would have decided disputes between members of their associations. The only judicial change which synoekism and the growth of State-power involved was, therefore, an extension of the area of jurisdiction, and an increase in the number of people who had the right, if not the duty, of referring their disputes to a common authority. But this new central court of justice was neither incompatible with, nor destructive of, the more primitive local courts. Coulanges[16] maintains that Plutarch and Thucydides are wrong in the assertion that Theseus abolished the local magistracies of Attica. Gilbert[17] admits that the Attic tribe-kings still functioned as judges in inter-tribal disputes, in historical Athens. It is quite possible that, in early times, there was no right of appeal outside the tribal court for members of the same tribe. There is a law[18] of an Anglo-Saxon king of tribal England which decrees: ‘Let no man apply to the king unless he may not be entitled to justice within his “hundred.”’
The judicial system of the Homeric epoch is complicated by the presence of the quasi-feudal Achaeans, who sometimes hear appeals in cases of ‘petty family disputes’ among the natives, but who, amongst themselves, obeyed the short and swift decrees of military courts or councils of war. We have said[19] that there is a suggestion of Achaean arbitration in the Euripidean legend in which Hecuba appeals to Agamemnon to justify, after the event, her punishment of Polymestor, the slayer of her son.[20] Assuming the view of Leaf[21] that the Achaeans did not interfere with the ‘group-system’ of the Pelasgians, we may for the moment ignore the presence of the Achaeans, though it is the predominance of that caste in Homer which has misled modern scholars in their opinions of the early Greek judicial system. We shall now examine some interesting survivals of clan-courts in the days of Plato and Demosthenes, so that we may realise more clearly the nature and the functions of the local courts of the ‘group system,’ courts which Homer almost ignores, which he would, perhaps, have entirely omitted to mention, if the Pelasgian craftsmen who fashioned the ‘Shield of Achilles’ had not engraved upon the Shield a picture of a Pelasgian Court of Elders, which was a familiar event in the everyday life of the cities and tribes of the subject-race.
Historical Survivals of Clan Courts
The first instance of ‘survival’ which we shall cite is mentioned by Glotz,[22] and in justice to him we must point out that we differ from him, not in regard to the question of the existence of clan-courts, but in regard to the nature of their judicial functions in the matter of homicide. Glotz is not aware of the distinction between the Pelasgians and the Achaeans, or of the importance of the group system in the Pelasgian civilisation. He admits that there existed within the clan a regular tribunal, composed of heads of families, who consulted and decreed, with absolute authority, on all matters affecting property, such as adoption, inheritance, expulsion, and marriage. He quotes Plato[23] for a procedure which, he presumes, was a general characteristic of the clans. We have seen that homicide, in default of wergeld, was commonly punished by exile or banishment. The following is Plato’s description of an expulsion from the clan: ‘For him upon whom there has come a desire, by no means fortunate, whether just or not, to release from relationship to himself one whom he has begotten and brought up, let it not be lawful to do this upon slight grounds or without delay; let him first bring together his own relations as far as his cousins, and also those of his son on the mother’s side, and let him accuse his son before them and prove that he deserves completely to be expelled from the family—and let him allow his son to prove equally that he does not deserve to suffer anything of the kind; and if the father can persuade and secure the votes of more than half all the relations (father, mother, son, and minors not voting),[24] then let it be lawful for the father to renounce his son: but otherwise not.’ It is most important to note here the reference to the presence of the son’s maternal relatives, for this implies an assembly of the clan or wider kindred, not merely of the gwely or descendants of a common living ancestor. It was this wider kindred which paid and accepted wergeld, even though they had not all a right of succession to family property. In the early clan system,[25] wergeld was part of the common stock which was inherited by all the wider kindred, and therefore decrees of expulsion, such as were pronounced, for instance, in default of wergeld payment, were matters for the decision of the whole clan rather than for those of the gwely or the ‘family.’ That such a procedure should have survived in Plato’s time, when property had to a great extent become ‘private’ in the modern sense, and when the political power of the clans had long since vanished into thin air, shows at once the tenacity of clan custom and the significance of Plato’s account as an argument from survivals.
Plato has another reference to a clan court, to which Glotz has not referred and which seems to us to furnish a splendid illustration of the manner in which minor issues, which affected merely the members of a local kindred, remained within the scope of clan jurisdiction even in historical Athens. We shall see later[26] that, owing to religious influences, kin-slaying became too serious a matter for the adjudication of clan tribunals from the seventh century B.C. onwards. Even minor cases of bloodshed such as ‘wounding with intent’ had probably, in historical times, been transferred to the jurisdiction of an Attic state court, called the Areopagus.[27] The clan court to which Plato refers, in the present instance, seems to have had power to try and to punish the wounding of a kinsman by a kinsman, in a passion; it is presumed, however, that the wound was not sufficiently grave to interfere with military service. Plato says[28]: ‘If one kinsman[29] wounds another ... let the heads of families[30] (i.e. the elders) and the male and female kindred, as far as the cousins[31] on the male and female side, come together and having tried the case deliver the offender to his natural parents to fix the fine[32]: and if the fixing of the fine be a matter of doubt, let the kindred on the male side fix the fine definitely; and if they are unable to decide, let them eventually refer the matter to the “guardians of the laws.”’ Plato goes on to say that where children wound their parents (presumably in a passion) the judges must be over sixty years of age, none of them must be a relative of the offender, and they may fix the punishment, which may include death.