Solon, the Athenian legislator, abolished all the laws of Dracon except those which related to homicide.[174] These particular laws were themselves an anomaly in the Draconian code. Plutarch says that the laws of Dracon were said to have been written with blood, not with ink.[175] Death was the penalty for minor thefts, yet the wilful murderer was accorded the option of exile, and the involuntary slayer, the further option of ‘appeasing’ the relatives of the slain! The life of a murderer in exile was ‘protected’ by the decree of a State whose jurisdiction ceased at its boundaries! We believe that the Draconian homicide-laws are an eclectic codification of existing traditions and that these traditions were a compromise between tribal customs and the seventh-century Apolline doctrine of ‘pollution.’ Coulanges says[176] that Solon did not change the murder laws of Dracon, because they were ‘divine,’ and to disobey or tamper with such laws was regarded as sacrilegious. In our view Apollo and the Delphic oracle constituted one of the sources, and clan-traditions another, from which sprang the laws which Dracon codified.
Plato,[177] speaking of the penalties for wilful kin-slaying, refers to a myth or legend ‘clearly told by priests of old’ to the effect that Justice, the avenger of kindred bloodshed, has ordained that the perpetrator of such an act shall suffer the same doom as he has himself inflicted.[178] We have seen[179] that in the clan-system, kin-slaying was normally punished by perpetual exile, but not by death. We do not agree with Caillemer[180] that the fate of such exiles was more pitiable than that of ordinary homicide exiles, but we support the following opinion of his in regard to the attitude of the kindred. ‘Ils hésitent,’ he says, ‘souvent à verser le sang de leur parent: ils se bornent au bannissement du coupable.’ In Plato,[181] the penalty for kin-slaying is inexorably death. It was, we believe, the pollution doctrine which indirectly produced this change, through the abolition of ‘private vengeance.’[182] It could not have directly produced it, as is clear from the fact that amongst the Israelites, who still retained the avenger of blood, Cain, the murderer of his brother, was punished only by exile; but when, as in Greece, the pollution-doctrine caused the State to interfere in the trial of homicide and in the execution of its penalties, State judges came to execute a penalty which the relatives of the slain would never have inflicted upon a kinsman in the days of ‘private vengeance.’ We shall discuss more fully, later,[183] the problems concerning parricide in Attic law. The fact that parricide was not expressly mentioned in Dracon’s laws does not prove that such a crime was not punished by State officials in historical times. Thus the myth which is attributed by Plato to ‘priests of old’ may be regarded as another proof of the ‘divine,’ which is to say, the Apolline inspiration of historical Greek homicide law.
Again,[184] in regard to suicide, Plato says that it is necessary for the relatives of the deceased to inquire of the ‘Interpreters’ as to the proper methods of purification and of burial.
But the most decisive argument to be derived from Plato as to the connexion of Apollo with purgation and with Greek homicide law can be found in the scholium to a passage in the Laws, a scholium which incidentally supplies a proof of the historicity of Plato’s murder laws. The passage enunciates different cases of justifiable homicide, or rather justifiably accidental homicide—the essence of such discrimination lies in the fact that certain kinds of accidental slaying were foreseen and provided for, in advance, whether by custom, or by public opinion, or by written codes—and the cases which are here enunciated are identical with those of the Draconian law regarding justifiable bloodshed.[185] We cite only a section of the passage,[186] which is sufficient for our present purpose. ‘If any person unintentionally slays a fellow-citizen (φίλος) in a “contest” or at the public games ... or during war, or in military exercises ... in imitation of warfare ... let him be purified according to the law brought from Delphi about such matters and be immune from punishment (καθαρός).’ The scholiast gives the Delphic law, as follows.[187] ‘The law or oracle brought from Delphi regarding a man who kills his friend (i.e. fellow-citizen, as distinct from public enemy) involuntarily:—“Thou hast slain thy comrade (ἑταῖρον) while intending to defend him (ἀμύνων)—his blood doth not pollute thee: thou art purer than thou wast before: but thou, man, who standing near a comrade being killed hast not defended him—thou hast gone not pure away.”’ That such important cases of justifiably accidental homicide should be provided for by Delphic legislation is a most noteworthy fact. Such cases are mentioned in Dracon’s laws, and we presume that they found a place in other Greek written codes. The reference to ‘public games’ suggests unmistakably an international code of laws. Here, then, we find Plato, a member of that Attic State which prided itself on the early foundation[188] of the Delphinium court, for the trial of justifiable homicide, in the time of its first Ionian Kings, advising a conformity to Delphic legislation in homicides of this kind! This scholium, if properly weighed and considered, would in itself be almost sufficient to demonstrate our theory of the Delphic origin of historical Greek homicide-laws, and of the universal similarity of these laws. We cite it here, however, as a mere link in a chain of evidence which is still very far from completion.
We have already referred[189] to the exclusion of homicide-exiles from Amphictyonic festivals in Greece, and we have maintained that such a law probably originated in some Amphictyonic league such as that of Apollo at Delphi. The same reasoning applies to the law quoted by Demosthenes[190] as a law of Dracon, which protected the lives of homicide exiles abroad. The law reads: ‘If anyone shall slay a murderer or cause his death while he abstains from market-places on the State boundaries and from (public) games and Amphictyonic festivals, such a person shall be liable to the same penalties as if he had killed an Athenian citizen.’ We have already[191] suggested the origin of such a law. It was, we think, due to the influence of tribal custom in conflict with the new doctrine of ‘pollution,’ in the seventh century B.C. Demosthenes does not understand correctly the origin of the law, though he is reasonably successful in explaining the law.[192] ‘What,’ he says, ‘was the legislator’s object? (He thought) that if we slay people who have fled to other countries, others will slay those who have fled to us: if this happens, the only refuge left for the unfortunate wretches will be abolished ... also he strove to prevent an indefinite series in the avenging of (such) crimes.... He considered that if a man who is tried for murder, and condemned, once escapes securely, though he ought (also) to be expelled from the native State of the victim, it is not righteous to kill him in every place.’ Demosthenes forgets that it was quite possible for ancient Greek States to make an international compact such as appears to operate between States of the modern world, whereby all murderers who fled abroad would be extradited—not slain where they had taken refuge, but handed over to the State of the ‘victim.’ We shall see presently[193] how the Greeks did evolve a system of extradition of a special kind. All the objects which Demosthenes attributes to the legislator are the creations of his own rhetorical mind. Why should he expect pity for ‘unfortunate wretches’ in a legislator who decreed that, if these wretches remained at home until the verdict of the court was given, they would inexorably be put to death? Why should a murderer expect pity from the relatives of the slain who were polluted by his presence? No, such a law must have originated in a central international Amphictyony or oracular authority which, in its legislation, had to respect the traditions of tribal village communities and of tribal aristocratic States, traditions which had come down from distant ages, and could not be suppressed without a struggle. Tradition held that ‘exile’ saved the murderer’s life, and it was not felt that such a penalty was not a sufficient deterrent. New social conditions, new religious doctrines may have changed men’s conceptions of the deterrent power of exile, but they had, nevertheless, to respect the old tradition. The homicide laws of historical Greece are, we believe,[194] a compromise between central autocratic deterrence and tribal ‘private vengeance.’
In the last clause of the Demosthenic passage which we have cited there is a reference to the righteousness of slaying a murderer if he did not abstain from the ‘land’ of the victim where that ‘land’ or State was different from his own. We fail to understand how such a law could have existed, or could have effectively operated, without an international compact expressly made or tacitly adopted through the mouthpiece of an Amphictyonic oracle. We cannot accept Glotz’s theory[195] that the immunity of homicide exiles abroad originated in separate treaties of Refuge or ἀσυλία. The law is much too wide and universal to permit of such an explanation. Thus, for instance, if an Athenian slew a Theban at Athens or at Thebes, the murderer was bound, after conviction, to abstain from Athens and Thebes for the rest of his life. No single Greek state could have produced such a law. Such eventualities would inevitably require an international compact or an Amphictyonic sanction.
Plato confirms the existence of these laws. Speaking of involuntary homicide, he says[196]: ‘It is necessary that the slayer should withdraw from the (country of the) slain and evacuate his own native land for a year: if the deceased is a stranger, let the homicide be debarred from the stranger’s “land” for the same period.’ Speaking of wilful murderers, he says[197]: ‘If he goes abroad without challenging a verdict (μὴ θέλησας κρίσιν ὑποσχεῖν), let him suffer perpetual exile: but if any such person sets foot upon the “land” of the slain, let whoever first meets him, whether relative (of slain) or citizen, slay him with impunity, or ... hand him to the magistrates ... to put him to death.’
So far we have assumed that only two States were involved in the homicide. But let us suppose that an Athenian slew a Theban at Argos. It would seem that the Athenian slayer, if he elected to become an exile rather than to die, was debarred from three places or rather three States, namely, Athens, Thebes and Argos. Plato, speaking of involuntary homicide between strangers, metics, and citizens, says[198]: ‘If a stranger involuntarily kills a stranger in the city, let anyone who wishes prosecute him in accordance with the same laws: if the slayer is a metic, let him go into exile for a year: if he is a complete foreigner, let him, if he shall have killed a stranger or a metic or a citizen, be banished for his whole life from the country which has power over these laws,[199] and if he returns contrary to the law let the guardians of the laws punish him with death.’ The city which has ‘authority or power in regard to these laws’ must be, in this case, the city in which the deed took place. Thus, a person guilty of involuntary homicide could in certain circumstances be debarred for ever from the place in which the deed occurred, and for at least a year from the land of the victim and also from his native land. Who could have enacted such laws except an international authority?
The operation of such an authority is also revealed in the laws regarding ἀνδροληψία, or the seizure of hostages, when a murderer was not tried or punished by a ‘foreign’ State. A law which is attributed to Dracon, but which clearly must have had its origin in some national or central Greek authority of pre-Draconian days, reads as follows[200]: ‘If anyone dies a violent death, his relations shall be entitled to take hostages on his behalf, until (the people concerned) either challenge a verdict of murder at a trial (δίκας τοῦ φόνου ὑπόσχωσιν) or extradite the slayers: and the taking of hostages shall extend to three persons but not more.’ The meaning of the law may be thus illustrated: if an Athenian slew a Theban at Argos, and if the Argives ignored the deed, and no one prosecuted the slayer, the relatives of the Theban could come to Argos and seize the first three men whom they met, and hold them as hostages till the Argives either tried the slayer or handed him up to the Thebans. We have taken an extreme case, but it is such a case which Demosthenes has in mind when he comments[201] on the law. In historical Greece, the duty of prosecution was normally limited to the relatives of the slain. The slaying of strangers was therefore likely to pass without prosecution. But this right of ἀνδροληψία was an important corrective of the laxity of this system. Relatives, living at a distance, ignorant of the actual slayer, might be regarded as impotent since they knew not whom to accuse. But the seizure of hostages would speed up the revelation of the criminal!