We may distinguish three different cases of ἀνδροληψία. (a) If an Athenian slew a Theban at Thebes, that is, if a stranger slew a citizen, then the relatives of the slain who were on the spot could ascertain easily enough the identity of the slayer and could put him on trial. If after conviction he fled to his native State, that State was bound to put him to death. If he remained after trial in the State of the slain, which, in this case, was also the State in which the deed took place, he was also put to death. But if he fled before trial to his own State, and if his fellow-citizens did not try him and punish him, or arrest and surrender him, the relatives of the slain could legally seize as hostages three of his fellow-citizens. (b) If an Athenian slew a Theban at Athens, that is, if a citizen slew a stranger, then the relatives of the slain, being aliens, had the right to prosecute through a προστάτης; but if the slayer was not tried or surrendered, seizure of hostages followed, for such seizure was the only means by which this result could be secured, and ultimately the slayer was debarred both from Athens and from Thebes. (c) If an Athenian slew a Theban at Argos, and if the slayer remained at Argos, unpunished, or if he fled to Athens and enjoyed immunity there, the relatives of the slain Theban were entitled to seize three Argives or three Athenians, as the case might be, in order to compel his surrender. The city which harboured him had either to put him on trial or to give him up to the relatives of the slain. We may infer from Plato that, if he were convicted of manslaughter at Argos, his punishment would have been more severe than if he were convicted at Athens of slaying an Athenian in Athens! But we presume that he could have elected to stand his trial at Athens, if the Theban relatives agreed to accept the verdict of an Athenian court.
The wording of the Draconian extradition law is vague and incomplete. The emergencies which it does not expressly indicate were no doubt provided for by an Apolline Amphictyonic code, which was either unwritten or, if committed to writing, was kept secret, or if promulgated, has left no trace of itself in inscriptions or in literature. But we fail to see how even the Draconian law could have ever originated in any one State, or in the mind of a single legislator. We believe that it was, on the contrary, of international or Amphictyonic origin. We have suggested, moreover,[202] that the homicide penalties of historical Greece were the result of a compromise between the religion of Apollo and the traditions of local State-gods and of the Erinnyes who represented the wrath of the slain and the desire of the relatives for retribution. Does not this theory help to explain and does it not therefore derive support from the fact that the punishment of homicide was most severe and the duty of prosecution most widely diffused in the case of homicide committed in a State in which both slayer and slain were legally ‘strangers’?
Glotz,[203] who sees in the protection of a murderer’s life ‘abroad’ (which means, as we now see, anywhere outside the one, two, or three States which might be involved in the case) the operation of treaties of ἀσυλία or Refuge between individual States, explains the extradition law regarding the seizure of hostages as an ancient tradition of the clans. Indicating the contrast which exists between ancient and modern extradition, he observes[204]: ‘En Grèce, l’extradition a de bonne heure figuré dans le droit des gens. Mais elle n’était pas du tout à l’origine ce qu’elle est devenue. Les peuples civilisés des temps modernes ont pour principe de livrer des étrangers présumés coupables de crimes commis en pays étranger, mais non pas leurs nationaux, même pour crimes commis sur terre étrangère. Les anciens se faisaient un point d’honneur de ne pas abandonner le malheureux qui s’était enfui sur leur sol et confié en leur protection. L’hôte est toujours sacré: le foyer d’une cité est un asile inviolable ... c’est l’extradition telle qu’ont pratiquée longtemps les Aryens, ut populus religione solvatur.’ It was, according to this view, only a sense of honour, a fear of violating the sacred rights of hospitality, which gave to Greek extradition law its peculiar characteristics. But criminals cannot claim any right of hospitality, in the ordinary sense. Moreover, Glotz forgets that a Greek State had to expel or deliver up a stranger if the deed of blood was committed in its territory. It also had to give up its ‘nationals’ if these ‘nationals’ had slain foreigners at home or abroad. Glotz draws too fine, too neat a contrast between ancient and modern extradition. He does not explain the origin of the ancient system. To say that it existed in early clan-law but that it developed later into something quite different is not an explanation of it. Clan-extradition arose, we believe, as a solvent of war between the clans concerned. The tribal court or the city court may possibly have acted in Pelasgian times as a medium for the operation of this solvent. But the historical system of extradition, with all its minute differentiations and variations, bears, we think, the stamp of Amphictyonic legislation in the age of aristocratic rule in Greece, or in what we may call the Apolline era. It was only when homicide became an offence against an international god at Delphi, that is, in the seventh century B.C., that such legislation came to be applied to this kind of ‘crime.’ This is our explanation of the origin of the law. It was an international compact issued in the form of an oracle.
As an illustration of the interference of oracles in international disputes we will cite one or two passages from Herodotus. At the battle of Thermopylae in 480 B.C. Leonidas, the famous king and commander of the Spartan band, was slain, and Xerxes, the Persian king, mutilated the corpse by decapitation and crucifixion.[205] This act is regarded by Herodotus as a barbarous violation of the customs of war, and is attributed by him to the rage and anger of Xerxes at the time. The Spartans seem to have been able to present the act afterwards as a case for damages, and they secured the support of the Delphic oracle. When the Persians had failed in their expedition against Greece, and Xerxes was returning to the Hellespont, ‘an oracle came from Delphi to the Lacedaemonians bidding them ask satisfaction from Xerxes for the death of Leonidas and accept that which should be given by him.’[206] Xerxes ridiculed the suggestion at first, but later he referred the herald to Mardonius, who would, he said, pay satisfaction. At the battle of Plataea Mardonius was slain, and then, says Herodotus,[207] ‘the satisfaction for the death of Leonidas was paid by Mardonius according to the oracle given to the Spartans.’ Again, we are told[208] that after the Persian conquest of Lydia, Cyrus charged Mazares to bring to him alive a certain Pactyas, a leading anti-Persian rebel. Pactyas fled to Kyme, and when messengers came from Cyrus demanding his ‘extradition,’ ‘the Kymeans resolved to consult the deity at Branchidai as to the course which they should follow.... For there was there an oracle established of olden time, which all the Ionians and Aeolians used to consult’: and ‘when they thus inquired, the answer was given them that they should deliver up Pactyas to the Persians.’ Herodotus says that the Kymeans did not give up Pactyas, as they suspected the oracle of political designs. Later, the oracular shrine informed them that they were bidden to deliver up Pactyas only in order that they should be punished by the gods for contemplating the violation of a suppliant’s rights! This does not imply, as Glotz[209] supposes, that such rights belonged to murderers, for Pactyas was not a murderer. We cite the passage here merely to illustrate the custom of consulting oracles in ‘extradition’ disputes.
The theory which connects Apollo with the doctrine of homicide as a ‘pollution’ finds further confirmation in many Greek legends. The story of the purgation of Ixion by Zeus, which is first referred to by Pindar[210] and by Aeschylus,[211] is, we think, an instance of ‘reconstruction,’ or ‘retrojection,’ on the part of legend-makers who were less concerned with the matter of consistency in the character of Zeus than with the maintenance of his exalted rôle in the Olympian religion of post-Homeric days, which tended to extol Apollo the Son over Zeus the Father. Sidgwick’s view[212] that this legend originated in an attempt to derive the name Ixion from the root ἴκ as found in the words ἱκέτης and ἱκετεύειν (which refer to suppliant-rights) seems to us very probable. Pindar has perhaps been misinterpreted by Verrall[213] in the translation of ἐμφύλιον αἷμα as kindred-murder. We have seen[214] that the word ἔμφυλος sometimes carries this meaning in Homer. But in the Pindaric narrative it was his father-in-law whom Ixion slew, and fathers-in-law are not, as a rule, akin in blood to their sons-in-law, though they may belong to the same tribe (φυλή). Pindar asserts that the act of Ixion was malicious: but we have said[215] that for malicious kin-slaying purgation was not possible: ‘Of a kindred blood defiled,’ says Plato,[216] ‘there is no other cleansing ... before the life that has sinned shall pay kin blood for kin blood.’ Hence, it is necessary to suppose that Ixion was not akin to his victim. The legend of the purgation of Ixion is open to suspicion on the further ground that Ixion is said[217] to have been the first who ‘supplicated’ for purgation, and is said to have been purged by Zeus. Now Apollo, not Zeus, was the pioneer amongst the Purifying gods (καθάρσιοι θεοί). It was Apollo who purified Orestes, in the legend which Aeschylus follows in the Eumenides.[218] ‘Mine was the house,’ says Apollo, ‘and mine the hearth which received this suppliant, and I am the purger of his blood-guilt.’
We shall see, later,[219] what a difficult problem the Homeric saga of Orestes presented to the legend-makers of the ‘Apolline’ era (750 B.C. onwards). There was only one means by which the Homeric story could be retained without assuming an atrocious indifference to kin-slaying on the part of the Homeric Greeks: namely, by representing the act of Orestes as in some way justified. But the Apolline code, if we may regard Plato as a worthy exponent of it, did not admit a plea of justification for the slaying of a parent in any circumstances. ‘In what other way (than by death),’ says Plato, ‘would it be right to punish one whom no law will permit, even in self-defence and in danger of his life, to slay his father or mother ... and whom (the legislator) will bid to suffer anything rather than perpetrate such a deed?’[220] We are convinced that there was one thing, and one thing only, which would have been accepted by Plato as a justification for such an act, namely, the express command of Apollo himself. Apollo was the reputed founder of the Attic Court Delphinium; he was regarded as the initiator of the distinction between just and unjust slaying[221]: he appointed and controlled the Exegetae or the Sacred Interpreters of the laws of ‘purgation’[222]; surely his command, impossible to disobey, would have been admitted as a justification for the deed of Orestes. In the Eumenides[223] of Aeschylus, Orestes says to Apollo: ‘Be thou my witness: show, Apollo, whether I slew her justly. The fact of slaying I do not deny: do thou decide whether in thy judgment I slew her justly or not, that I may tell these judges here.’ And Apollo replies[224]: ‘I am a prophet and will not deceive: never, in my oracular shrine, have I said aught that Zeus, the father of Olympian gods, doth not command. Take note, ye judges, of the value of such a justification.’ So, in the Electra of Sophocles, Orestes says[225]: ‘When I approached the oracular shrine of Pytho, to learn whereby I might punish the murderers of my sire, Phoebus made answer: “No host of shielded warriors, but thine own guileful craft, O prince, and thine own arm shall deal the death-blow righteously.”’ Even in the Orestes of Euripides, a drama in which, as we shall see,[226] the plea of justifiable matricide is almost entirely absent, Orestes tells the Chorus[227]: ‘Behold! Apollo, who in his palace in mid-earth gives to mortals oracles most clear, by whom we are entirely guided—him I obeyed when I slew my mother. ’Twas he who erred, not I. Is it not enough to remove “pollution” if I transfer the guilt to the god?’
Again, in the post-Homeric form of the legend of the Theban Oedipus, it is Apollo who commands the Thebans to search for the murderer of Laius, and, when they have found him, to put him to death or to drive him from the land.[228] In this option of death or exile we have the normal Attic, and, therefore,[229] the normal Greek penalty for wilful murder. The direction which Apollo gives, in the Oedipus Rex of Sophocles, is quite general.[230] Apollo speaks therefore as a lawgiver, and as a deity angered by unpunished homicide, rather than as a prophet; since he conceals for a time his knowledge of the slayer of Laius. In historical Greek law the penalty for parricide was invariably death. If Apollo had proclaimed the death penalty without the option of exile, for the slayer of Laius, the famous drama of Sophocles would have had to be considerably if not fundamentally altered. The area of the ‘search’ would have been limited to the kinsmen of the deceased Laius. The Homeric story of Oedipus is so very different from the later ‘tragic’ story that the evolution of the legend must have been attended with considerable difficulty. Legend-makers could not ignore the Homeric saga which told[231] how Oedipus, having slain his father, ruled over the Cadmeans, even though ‘the gods revealed these things to men.’ How was this fact to be explained from the standpoint of the post-Homeric doctrine of ‘pollution’ according to which all wilful parricides were inexorably put to death? We have suggested that Homer did not understand the mysterious immunity of Oedipus, and that this immunity was derived from a Pelasgian story, based on Pelasgian legal distinctions, to the effect that Oedipus did not really know that it was his father whom he slew, and that therefore Oedipus could not be regarded as a parricide of full guilt. It is also possible to suppose that the old Pelasgian story contained a reference to a further extenuation of Oedipus’ guilt, namely, a certain provocation on the part of Laius and his attendants; Sophocles says that Oedipus was insulted by the herald of Laius and that Laius smote him on the head with his goad.[232] Sophocles tells us also that when all the facts concerning the death of Laius had come to light, Kreon, instead of proceeding to punish Oedipus, decided to consult again the oracle at Delphi. Thus, when Oedipus, anxious to avail himself of the option of exile, asks Kreon to drive him from the land, Kreon answers[233]: ‘Assuredly I should have already done so, did I not first desire to learn from the god what should be done.’ Now if the deed of Oedipus had nothing to extenuate it beyond the fact that he did not know his father when he slew him, he would still have had to suffer the penalties of wilful murder, namely, death or perpetual exile. If, then, Kreon did not immediately proceed to punish Oedipus, but consulted Apollo a second time, this must be attributed either to the element of involuntariness or to the element of provocation, or to both these elements in the legend of Oedipus. These elements of provocation and involuntariness are most important for the legal intelligibility of the Oedipus Coloneus, as we shall see later.[234] At present we wish to emphasise the fact that this legend, like the legend of Orestes, became, so to speak, ‘Apollinised’ in post-Homeric times. Such transitions are only intelligible if we assume a connexion between Apollo and ‘pollution.’ We may infer that, in the post-Homeric legend, Apollo took a lenient view of the guilt of Oedipus, from the fact that, in the Oedipus Coloneus, the responsibility for his continued exile is laid not upon Apollo, but upon Kreon and the sons of Oedipus, who wish to enjoy the vacant throne of Thebes.[235] According to Euripides,[236] Oedipus’ sons imprisoned him, but Kreon drove him into exile.
In the Orestes of Euripides[237] it is Apollo who saves Orestes from the wrath of the Argives who have condemned him to death. Apollo decrees that, when Orestes has endured a period of exile and has submitted to a trial at Athens, the Argives must accept as their king a man whom they had already deemed worthy of an ignominious death! In the Electra of Euripides,[238] Castor and Pollux refer, by way of prophecy, to the fact that Apollo will ultimately secure Orestes’ deliverance from the Erinnyes.
In the Ion of Euripides[239] the Pythian priestess of Apollo commands Ion not to slay Creusa, who had attempted to poison him, and who otherwise would have urged in vain her plea of self-defence and the sacredness of her sanctuary.
In the Andromache of Euripides, Apollo is criticised for having permitted the slaying of Neoptolemus within the precincts of the temple at the hands of Orestes and the Delphians. The Messenger says[240]: ‘Thus has the Lord who gives oracles to others, who is the umpire for all men of what is right, requited the son of Achilles ... like any wicked mortal, he stores in his memory an ancient quarrel.’