Secondly, there was a religious compromise which is reflected in the ritual of purgation. In the Semitic doctrine of pollution, murder and manslaughter could only be ‘purged’ by the blood of the slayer, which meant, in practice, that the slayer could never be purged at all: but the ancient traditions of the tribes and their capacity for discerning the varying degrees of homicide-guilt led to a peculiar compromise, by which Apollo and other State gods consented to accept the sacrifice of a surrogate victim, when the atonement which the law prescribed had been paid, the actuality of the atonement being symbolised, as it were, by this Chthonian sacrifice of ‘reconciliation.’
Since Greece, unlike Israel, was a conglomeration of local civic groups, and as tribal custom had accepted exile in default of wergeld and prescribed different periods of exile according to varying degrees of guilt, therefore, when the issue was knit between the new Semitic doctrine of ‘pollution’ and the ancient tribal laws, the resultant compromise produced a new law which decreed perpetual exile for all cases of wilful homicide, including, we believe, originally, even kin-slaying. The law of historical times which condemned the kin-slayer inevitably to death was not, we have reason to believe, a product of the Asiatic-Greek compromise. Like the law which decreed the confiscation of a murderer’s property, it is, we think, to be attributed to the evolution of centralised State government. In regard to manslaughter different periods of exile were, no doubt, decreed according to the different degrees of guilt: the despotic doctrine of theocratic Asia had, in this, to respect the long traditions of tribal Greece: accidental and justifiable slaying probably required no civic atonement. Apollo was compelled to admit such slayers to immediate ‘purgation.’ In other cases, ‘purgation’ was accepted when the prescribed atonement had been made.
Our account of this compromise in the Greek doctrine of pollution is complicated by the presence of a third factor which had become more and more important as Greek States increased in size and power, and which must be indirectly attributed to the doctrine of ‘pollution,’ namely, the conception of homicide as an insult to the State gods and to the State, not merely to the Sun, or to the Delphian Apollo, or to some still more distant Orphic deity in the underworld. This conception of homicide raises it at once from the position which it held in the system of ‘private vengeance’: the murderer, like the traitor and the man stained with sacrilege, now stands forth, if not as a criminal in the modern sense, at least as a quasi-criminal, a vile being who has jeopardised by his act the prosperity and the destiny of the State. He is henceforth liable to ἄτιμία,—he must be degraded from citizenship: if he waits for the verdict which declares him a State criminal, he must die. If he flees, his property must be confiscated to the State, as was the property of all ‘degraded’ exiles. Retribution to the relatives, which is the basis of tribal wergeld, has vanished into the air, but the murderer cannot now be buried in the tomb of his fathers: he can never frequent the temples of his gods: he cannot even attend the public games of all the Greeks lest the contact of his presence should pollute his fellow citizens or the gods who no longer can tolerate his presence. But, provided he avoids certain areas and festivals, he may live without fear. A law of Dracon[95] declares that to slay such an exile was murder. Thus we see how the old tribal custom which accepted exile as a complete atonement, (not, as it was amongst Achaean militarists, a mere flight from death,) was respected despite doctrinal innovations, because it had been sanctified by time.
Glotz holds[96] that this immunity in foreign states of exiles who were guilty of wilful murder in their home-land was due to occasional treaties of ἀσυλία between Greek States. We shall see that such immunity was more probably derived from Greek extradition law, and such law implies international authorisation. It was precisely because such laws could be made and enforced that Greek homicides required no ‘cities of Refuge.’ Thus, the Greek pollution-doctrine bears on the face of it the stamp of a compromise between tribe and State, between local gods and international religion.
But there was a further compromise, which we must also indicate, namely, that which inevitably took place between the ghosts of the slain and the purifying gods, the καθάρσιοι θεοί. We have argued[97] that the chaotic centuries which followed the Achaean domination produced a much more monstrous and bloodthirsty conception of the Erinnyes than that which existed in the Homeric age. We have suggested that the revolt of the clansmen against Apolline innovations which abolished material retribution for homicide may have rendered still more ferocious and implacable the Erinnyes of the slain. Yet when the Greek Apolline doctrine of pollution was finally accepted by Hellenic tribes and States, the Erinnyes, like the Titans, were subdued, and became so mild that they could be identified with the Semnai Theai and called Eumenides! They could live in peace again, as in Homer, with the Olympian gods whom they had learned to loathe.
They had succeeded at least in imposing many old Pelasgian traditions upon the autocrat of Delphi. In historical Greece, at least before the third century B.C.,[98] the State could never take the initiative in a direct prosecution for homicide, as modern States do. It could, of course, bring a charge of Impiety against delinquent relatives of the slain[99]: but the initiative rested in theory with those relatives. The wish of a dying man who had been fatally wounded was expressed in a formal ‘charge’ which he gave to his relatives, and this very often determined the course of subsequent proceedings. ‘Forgiveness’ by the dying man precluded a charge of murder. If a Greek of the historical era, who had been fatally wounded, thus ‘released’ his slayer before he died, the relatives were not bound to prosecute[100]: they could be persuaded to refrain from prosecution by what is known as a ‘private settlement’ with the slayer and his relatives. This, of course, was not a genuine wergeld; and even if it was, we could not infer that pollution could coexist with wergeld, for ‘pollution’ did not arise, in any real sense of the word, as the Greeks interpreted it, when the dying man forgave. Now we cannot conceive such considerations as these affecting the theocratic ‘pollution’ doctrine of the Hebrews. The law which decreed by divine command that: ‘Ye shall not pollute my land wherein ye are: for blood defileth the land,’ takes little account of the wishes of the dying or of the relatives of the slain. We must, of course, distinguish ‘release’ from ‘forgiveness’ in Greek law. ‘Release’ implies the absence of any ‘charge’ by the dying man. In cases of involuntary homicide, unless the dying man commanded his relatives to prosecute, no trial or formal proceedings were necessary[101]: ‘private settlement’ was permitted. Whenever therefore a trial for involuntary homicide took place in historical Greece, we must assume either that the accused denied the guilt and refused ‘private’ compensation or that the dying man charged his relatives to prosecute. In this latter case the slayer was polluted and had to undergo purgation when the civic atonement had been made. Hence we may truly say that, within certain limitations, Greek ‘pollution’ depended on the will of the victim and of his relatives.
In the light of these details we can more easily explain the peculiar fact that a man who had no relatives—and it was sometimes possible that a metic, or a stranger, or a casual vagrant should have no relatives—could not be avenged if he were slain. In the Euthyphro of Plato[102] we are told how a poor freeman who had killed a slave was put in chains by his employer—it was a kind of informal arrest—till the verdict of the Exegetae should be heard. The freeman died. It was not wilful murder, but there was a certain degree of guilt, a certain amount of neglect on the part of his captor, a certain ἀφυλαξία which laid the employer open to a charge of manslaughter. Euthyphro, a son of the employer, feeling that he was ‘polluted’ by the fact of living with his father, proposed to charge him before the Archon Basileus at Athens; Socrates asks Euthyphro in the dialogue if he was a relative of the slain. Euthyphro replies that he does not see what difference it makes whether one is a relative of the deceased or not; the important thing is that he is polluted unless he accuses his father. Socrates implies that such an accusation is impious. We can only regret that Plato does not tell us the sequel of this fanciful drama. We think that Plato is sophistically exposing, if not covertly sneering at, the inconsistency[103] of the pollution doctrine. He objects, apparently, to the law which made prosecution the prerogative of the relatives of the deceased, a law which was derived, we think, from tribal traditions of ‘private vengeance,’ just as in other passages he objects to the legends of the gods which more primitive generations had created.[104]
We have said that ‘pollution’ was not confined to the murderer, but extended, as if by contagion, to all persons who harboured or protected him or neglected to punish him. Thus Plato says,[105] in regard to kin-slaying: ‘The relative of deceased as far as cousins, male and female, who does not prosecute ... shall take upon himself the pollution and the anger of the gods.’ In this we see an aspect of the Greek ‘pollution’ doctrine which expressed the autocratic will of Delphi and of State-gods in alliance with Delphi. But if the dying man ‘forgave’ or, in certain cases, did not solemnly ‘charge’ his relatives to prosecute, this autocratic will could be ignored. Thus, the Erinnys of a slain man had a determining effect on the obligation of prosecution and on the nature of the penalty. In the Oresteian legends as they were staged by Attic dramatists, this twofold aspect of ‘pollution’ is never quite forgotten; but there are complications in these legends which prevent us from dwelling at any length upon them here.
In the case of kin-slaying in a ‘passion,’ the influence of the ghosts’ will was especially vigorous. Plato says[106] that even when the ‘involuntary’ slayer had served a term of three years’ exile, and had returned to his native land, he could never return to his family and his home, or share with his kindred in domestic rites. Thus the Erinnys of the slain kinsman refused to be controlled by a centralised autocracy at Delphi, or even by the will of native State-gods. Hence, perhaps, it is that in the dramatised versions of the Oresteia, Athene has to use ‘Persuasion’[107] to induce the Furies of Clytaemnestra to become Eumenides. Hence the Furies say of Orestes[108]:
‘His mother’s blood upon the Earth he spilled.