Let us now consider some other hypotheses as to the origin and evolution of homicide-courts. Glotz and Bury are in agreement in supposing that wergeld was abolished, not by the Apolline religion, but by the establishment of State power: though, in so far as it was the Apolline doctrine of ‘pollution’ which compelled the State to interfere, they would be compelled to admit that Apollinism contributed to the abolition of wergeld if it did not directly abolish it. Glotz, in particular, is anxious to establish a novel theory of his own,[66] to the effect that it was Solon, not Dracon, who abolished wergeld! The only reason he gives is that Solon’s general policy was opposed to clan-jurisdiction or clan-power exercised to the detriment of the State. This opinion we shall discuss in its proper place.[67] But there is an important element of truth in the Glotz-Bury position which must be clearly indicated. We have said that the original Pelasgian State courts very probably heard disputes in regard to homicide, at least between members of different tribes. Now, tribal society is based on a close exclusive aristocracy of birth. Strangers may be received with temporary hospitality, but their adoption into the permanent life and privileges of the tribe was a matter of great difficulty.[68] Every tribe contained a gradually increasing number of ‘hangers-on,’ lackland men, bondsmen, serfs, and casual vagrants, who may be regarded as the nucleus of the plebeian movement which in many cases culminated in democracy. The growth of commerce in the seventh century, the invention of coinage, migration and colonisation led to the rise of a new aristocracy of wealth[69] as distinct from birth. Many of the ‘new men,’ who now were very powerful, did not belong to the old aristocratic tribes. In cases of homicide between members of this new group, who would act as judge? The tribe-kings regarded such a group as entirely outside their caste. For such a group there was neither religion nor law nor justice. Hence they probably resorted to what we have described as unrestricted vendetta. It was precisely at this juncture, as we think, that the new religion of Apollo, with its quasi-Asiatic doctrine of murder as a ‘pollution,’ came to Greece. Murder now became a ‘sin’ against the State gods. If unpunished, it brought upon the State the anger of its gods. State courts were now compelled to sit in judgment on all cases of homicide which occurred within the State: no longer were the tribes permitted to adjudicate for intra-tribal slaying. They could still hold ‘minor investigations’ at their local Prytaneum; though we cannot agree with Müller and Philippi in describing as a ‘mock-trial’[70] their investigations into the guilt of animals and inanimate objects (δικαὶ ἀψύχων). But the man ‘who shed man’s blood’ had now to appear before the central tribunals of the State: all men had to appear, not merely the aristocratic heirs of tribal privilege. This, in our view, is what happened in the seventh and sixth centuries B.C. In the circumstances of the time it was an event of incalculable utility to Greek societies. But the lustre of the event and the chaos which it terminated have dazzled the minds of modern thinkers so much that they forget the older and, for the period of its power, the equally effective vigour of the courts of the tribal State. Thus, what Glotz and Bury have attributed to the evolution of State power is really to be attributed to the new non-tribal democracy and the religion of Apollo.
The view of Gilbert and Köhler,[71] and, we may add, of Müller,[72] which places the origin of trials for homicide in the conception of bloodshed as a sin and in the respect for sanctuary, remains for discussion. Müller is, we think, mistaken in supposing that bloodshed was sinful from the earliest dawn of Greek society, and that wergeld originated in the purgation-ritual.[73] This opinion we shall criticise at length in the next chapter. Gilbert’s conception that the right of sanctuary existed from immemorial antiquity and was a necessary preliminary to wergeld negotiations cannot be harmonised with the evidence of the Homeric poems or with the customs of other analogous tribal peoples. We shall find, indeed, in Euripidean legends evidence of the efficacy of sanctuary to protect[74] the suppliant, but we also find evidence that it was potent merely to delay[75] the inevitable doom. In Homer there is no suggestion that an Achaean would have ever heeded, or that a Pelasgian would have ever needed, such a refuge. Quick vengeance, permitting, as Demosthenes says,[76] no κρίσις between φόνος and τιμωρία, is not a characteristic of the tribal wergeld system. In regard to later times, Gilbert says that ‘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 of trial were connected with three sanctuaries.’ He refers, we presume, to the Attic courts known as the Areopagus, the Palladium, and the Delphinium. But the connexion of these courts with local temples may be otherwise explained. Coulanges[77] points out that the assembly-place of the Roman Senate, which was a judicial as well as an administrative council, was always a temple. We shall see later that the murderer in the ‘pollution’ period was debarred from any contact with a temple under most serious penalties. We must then defer to a subsequent stage of our work[78] the final refutation of Gilbert and of Müller and the complete exposition of our own hypothesis as to the origin and evolution of the Attic murder courts.
FOOTNOTES
[1] Il. xviii. 497-508; supra, p. [34 ff.]
[2] History of Greece (2nd ed.), p. 172.
[3] Manual of Greek Antiquities, p. 406.
[4] Op. cit. p. 145.
[5] Op. cit. p. 172.
[6] Gk. Const. Ant., Eng. trans., p. 379. So, Köhler, Herm. 6. 102, there quoted.
[7] i.e. in Attica.