We have already hinted[33] that the discrimination between degrees of guilt in homicide cases, which is extremely minute in the laws of Plato, and which is present in a cruder form in the Draconian code, finds its ultimate origin in the old customs of tribal life. Bearing this hypothesis in mind, we are not surprised to discover that such matters as wounding without intent, which is not mentioned in Dracon’s code and which therefore was not a matter for compulsory prosecution in Attic state courts, can nevertheless be subjects for adjudication in the courts of the clans. Of course, the ‘guardians of the laws’ whom Plato mentions are technically officers of Plato’s ideal State, but the main factors in the trial are doubtless derived from actual clan tribunals which operated in Plato’s own experience, unless the ‘guardians of the laws’ are to be interpreted as symbolical of the appellant jurisdiction of the State. Glotz, of course, thinks[34] that at no time was kin-bloodshed a matter for Greek State courts, but we shall see, later, that this view is most probably incorrect. Plato insists that the judges who condemn to death the child who is guilty of wounding its parent must not be akin to the child. This principle need not imply that the judges must have been State judges. In the phratry and in the tribe one could find many men over sixty years of age who were not akin to such an offender. The fact that these judges in historical times had the power of condemning an offender to death is probably to be attributed to a survival of tribal jurisdiction in cases where that jurisdiction had not been definitely arrogated by the State.
A further instance of the survival of clan and phratry courts may be found in the law of Dracon[35] which prescribed a collective decree of ‘appeasement’ in cases of involuntary homicide. The law may be freely translated thus: ‘Let there be “appeasement” if there is a father or brother or sons (of the victim): let all agree or let one objector hold the field; if there be none such, let all the kinsmen within the degree of cousin (be appeased) if all consent to be appeased; if there are none of these, and the slayer slew involuntarily, let ten phratores be appeased if all consent to be appeased.’ The procedure here prescribed applied only to involuntary homicide. Before the ‘appeasement’ a period of exile had to be completed by the slayer.[36] It is not a case of accidental homicide, which involved no punishment.[37] Glotz[38] argues that the phrase ἅπαντας ἢ τὸν κωλύοντα κρατεῖν implies a universal clan consent; but it is obvious that the law is satisfied by the consent of groups within the clan or (in default of these) of the consent of ten phratores, who were members of the same local religious union. The only point we wish to make here is that in this survival of the consent of the kindred for the abolition of a feud caused by involuntary homicide we have all the elements which would have constituted a homicide tribunal in days before the encroachment of State power. It can only be a survival of a wergeld system of vengeance, as in this system alone is there found a minute arrangement for payment and receipt according to the different degrees of kinship. A similar law of clan-consent governed the rights and duties of burial, even in the time of Demosthenes, and is appealed to as evidence for the right of succession to property. Demosthenes thus quotes[39] a law of Solon: ‘it shall not be lawful for any woman under sixty years of age to enter into the chamber of deceased or to follow the corpse when it is carried to the tomb except those within the degree of cousins’ children.’ A law of Dracon[40] decreed that after burial of a murdered man ‘proclamation shall be made to the homicide in the market place by all the relatives within the degree of cousin; and cousins and children of cousins and sons-in-law and fathers-in-law and phratores shall prosecute.’ Here we have a clear picture of the solidarity of the clan. The presence of the φράτορες, too, is significant. They were strictly outside the clan, as each phratry included members of neighbouring clans who were bound together by a common extra-clan worship. In this co-operation of the φράτορες we plainly see a natural basis for discussion and negotiation in blood feuds between different clans; this co-operation extended also, in certain cases, to the tribe and, after a coalition of tribes, to the ‘ancient city.’[41] Thus Glotz[42] rightly says: ‘La famille fictive suit les principes de la famille naturelle.... On dirait que le groupe a conservé, en souvenir d’une parenté primitive, en vertu d’une parenté théorique, un droit éminent sur les biens de chacun.’
So Fustel de Coulanges points out that just as each gens[43] or clan had its own tribunal and chief, so also the phratry[44] had its own phratriarch, assemblies and tribunals. ‘It was,’ he says, ‘a small society modelled on the family,’ and the tribe[45] had, as chief priest and judge, a tribe-king (φυλοβασιλεύς), and held assemblies whose decrees bound all tribesmen. The nature of such tribal conventions and decrees is further illustrated by a passage in Demosthenes, to which Coulanges refers.[46] In a speech against Theocrines,[47] Demosthenes narrates how the fellow-tribesmen of Theocrines convicted him of the embezzlement of tribal funds and punished him by a fine; and he was forbidden by State law to prefer any indictments against any citizen until he had paid this fine, as in the meantime he was regarded as a State debtor. The decree was moved against him at a tribal meeting by a certain Scironides and the fine proposed was seven minae.[48] From such passages as this Coulanges[49] argues that Plutarch and Thucydides are mistaken when they say that Theseus destroyed the local magistracies after the synoekism of Attica. This Demosthenic passage indicates clearly the survival of courts whose primeval jurisdiction had been largely superseded by that of the State.
Apart from those arguments which are based on the survivals of tribalism, it is logically probable that since homicide in Pelasgian society was normally atoned for by the payment of a collective wergeld penalty, which affected the property of at least two clans, and since the judicial machinery of Pelasgian tribes was such that it would ordinarily have been set in motion for adjudication in disputes regarding property, homicide was therefore a fit and proper subject for investigation by such tribunals.
The Shield of Achilles and the Royal Judges
Homer, in describing the Shield of Achilles, happens to mention a court which is appealed to in a dispute concerning wergeld, and such a reference is as complete a confirmation of our hypothesis as can reasonably be expected.[50] We have already given what we consider to be the correct interpretation of this passage. The Elders were Pelasgian tribal chieftains, who frequently came together and sat upon polished stones, ‘in a sacred circle,’ holding in their hands the sceptre of authority. It is quite probable, as Leaf[51] suggests, that two of the Elders acted as ‘advocates,’ and it is almost certain[52] that the two talents of gold which are mentioned were a kind of advocate’s fee which was deposited by both litigants in order to encourage the advocates to give a proper exposition of the unwritten code of the tribes. The fact that the dispute concerned the payment of wergeld, and not the reality of guilt, does not warrant the conclusion that the court of Elders could not have functioned, if it were necessary, as a murder court. It is true that in the group system of primitive tribal life there was never very much difficulty in establishing the identity of the murderer; but it is equally true that if an accusation was challenged or disputed, there must have existed a court whose decision would have been accepted as final: we cannot conceive an entire clan agreeing to pay the wergeld of 120 cows if the person who was accused of homicide had assured his own clan court that he was innocent. Now the Elders of the Homeric trial-scene would normally have adjudicated in cases of homicide between the members of different tribes; and it is possible that they would have heard appeals from tribal or phratry courts, in the event of disagreement about inter-tribal cases. The Elders are therefore the real δικασπόλοι βασιλεῖς of the Homeric society. The fact that the Achaean kings are credited with this title in Homer does not prove that they ever functioned as such. Leaf[53] thinks that they might have consented to hear appeals in isolated instances, but the title δικασπόλος is one which could frequently have been applied without very much significance to Achaean feudal lords who possessed a theoretical supremacy in Greek jurisdiction. Within the Achaean caste, these lords revealed no interest nor did they acknowledge any obligations in the judicial aspect of homicide. On the contrary, they frequently gave their daughters in marriage to murderers! We think, therefore, that Leaf would not now find so much difficulty in the absence of a ‘king’ in the Homeric trial-scene as he did in 1883.[54] It is not certain, of course, in what Greek areas Pelasgian groups still retained Pelasgian kings. The Minoan kings of Mycenae, Lacedaemon, and Thessaly, and other districts disappeared in the Achaean conquest. Still there survived a few Minoan or Pelasgian kings who lived in friendly alliance with the Achaeans, and who could still be truly described as defending ‘the Zeus-given θέμιστες.’ But it is also true that at the time of the Trojan war the Achaean lords would have come to be regarded as the ‘heaven-sent guardians of law,’ through the mere fact that they were ‘kings.’
Maine[55] thinks that the θέμιστες (customs) of the Homeric age were isolated judgments delivered without any orderly sequence or precedent. But Glotz[56] insists that the word θέμις is peculiarly applicable to tribal custom, as opposed to the terms δίκη and νόμος. We believe that the word generally refers to Pelasgian traditions.
In the Iliad[57] we are told that Zeus is wrathful against men who judge crookedly in the Assembly, and drive out Justice. Who are these men? They may, of course, be Achaeans, but we think it more probable that they are the judges, and therefore the chiefs, of Pelasgian tribes—judges whose tribal successors were accused of corruption in the days of Hesiod,[58] when the Achaeans were no more. In Homer two talents of gold were offered as a reward for an advocate’s successful pleading, and the advocates were probably chosen from the same caste as the judges. From this it is but a short step to bribery and the corruption of justice. Hence we can understand the words of Hesiod: ‘The people pay for the folly of their kings, who with ill thoughts wrest aside judgments, declaring falsely. Beware of these things, ye kings, and set straight your speech, bribe-devourers, and utterly forget crooked judgments.’ And again[59]: ‘There is the noise of the haling of Justice wheresoever bribe-devouring men hale her, adjudging dooms with crooked judgments. And she followeth weeping, clad in mist and fraught with doom, unto the city and the homes of men who drive her forth.’ In ancient society social law is inseparable from religion; as Coulanges puts it[60]: ‘To disobey law is sacrilege.’ The law was regarded as the exclusive secret of the hereditary nobility,[61] who alone could interpret it and whose decision was final. The opportunities for profit-making and bribery in such a system must have been innumerable. In later times when democracy asserts itself the less-privileged orders,[62] championed sometimes by tribal or quasi-feudal kings, sometimes by usurping tyrants, equipped with mercenaries, compelled the ‘Elders’—that is, the old patriarchal sacerdotal nobility—to codify their laws and to admit to judicial power the ‘new nobility’ of wealth and the ignoble proletariat. The old nobility came then to be distinguished for the integrity of its judicial character, partly because it had lost its monopoly of power, partly because corruption could no longer be practised with impunity.
Origin of Homicide Courts
From what has been already said[63] it must be sufficiently clear what was, in our opinion, the origin of murder-trial in early Greece. The local courts of clans and tribes constituted a nucleus for the development of central State courts when civic groups emerged into being through political synoekism. Homicide was a proper subject for litigation, in the tribal wergeld system, simply because the normal penalty involved a transfer of collective property or the expulsion of a tribesman. If then phratry-courts had to decide issues between different neighbouring clans, if tribal courts had to decide disputes between clans of widely separated localities, is it not natural to suppose that the State courts of synoekised areas would have adjudicated in disputes between members of different tribes? Hence the judicial assembly of tribe-kings (φυλοβασιλεῖς) constituted a more or less important State court from the most remote antiquity. In historical Athens, Aristotle[64] assures us that they still judged, at the Prytaneum, indictments concerning animals and inanimate objects (δικαὶ ἀψύχων). Glotz[65] says of the Prytaneum Court: ‘Il semble même qu’il ait été le premier et longtemps le seul tribunal d’Athènes.’