Thus the conception of homicide as a pollution permeates all Greek tragedy: however various the legends, however different the localities to which they refer, they all breathe the same Apolline atmosphere. We have already[241] quoted Herodotus’ opinion as to the universality of the ‘purgation’ rites by which the pollution of homicide was cleansed. If it be true, moreover, that the laws which regulated the historical Greek treatment of homicide were more or less identical in all the more important and advanced Greek States, would not this fact suggest that the origin of these laws must be sought, not in the genius of occasional local legislators, but rather in the simultaneous universal operation of identical causes? One of these causes, we believe, was the doctrine of pollution.
The legends of Attic tragedy on the whole suggest a uniform system of murder-law in historical Greece. In Euripides’ Orestes[242] we are told that Orestes did not follow ‘the common law of the Greeks.’ In the Heracleidae,[243] Eurystheus, referring to a threat of murder on the part of Alcmene, says: ‘By the laws of the Greeks, if I am slain I shall cause my slayer to be polluted.’ In the Hercules Furens,[244] Hercules, the slayer of his children, feels that men’s doors will be closed against him in all parts of Greece, without exception. We have already[245] referred to the possibility that a more severe code of penalties for homicide existed at Sparta than in other parts of Greece. Xenophon[246] says that a certain Dracontius was condemned to perpetual exile for involuntary homicide. If we have here a really exceptional penalty, we must attribute it to the peculiarly military character of the Spartan State. But can we be sure that the penalty was exceptional? Plato decrees perpetual exile for involuntary slaying between strangers in any given State[247]; moreover, for slaying in a passion, which is quasi-involuntary, he decrees perpetual exile for the second offence.[248] Xenophon does not give us sufficient details about Dracontius to enable us to regard this penalty as a definite exception. Again, in regard to Crete, we have indicated[249] the absence of any reference to wergeld in the laws of Gortyn. This shows the influence of some universal Greek doctrine which led to its abolition. The fact that Apollo was said to have received many of his Delphic priests from Crete,[250] and the fame of the Cretan purifier, Epimenides, in the seventh century B.C., point to the same conclusion.
Wergeld and Private Settlement
We must now discuss more fully the question: did the pollution doctrine abolish wergeld? We can answer this question satisfactorily by merely answering another question which is intimately connected with it, namely: ‘was “private settlement” legal in historical Athens?’—‘was it lawful for the relatives of the slain, if they so wished, to abstain from prosecution, and could they legally accept from the slayer a bribe or a gift if they so abstained?’ We do not deny the fact that such settlements did occasionally take place; but if these settlements were legal, then our theory that pollution abolished wergeld cannot stand. We are glad to be able to quote the authority of Philippi[251] in favour of the illegality of ‘private settlement,’ but as the arguments of Philippi are rejected by Glotz,[252] we must in turn reject the arguments of Glotz! It is strange that Müller, who holds[253] that wergeld originated in ‘pollution,’ maintains that in historical times ‘private settlement’ was not valid except in cases of involuntary slaying.[254]
For the sake of clearness we will summarise our own conclusions in advance. We believe that ‘private settlement’ was permitted by law or custom—it was not expressly prohibited or permitted by any written code—whenever a ‘release’ from blood-guilt on the part of the victim, before death, was formally granted, or, in the absence of a ‘charge,’ could be tacitly assumed; but that otherwise ‘private settlement’ was a sin, a religious quasi-criminal offence, and must therefore have been legally invalid, in the sense that the offender was liable to prosecution.[255] This view is not only consistent with, but is in part derived from, our theory of the incompatibility of ‘pollution’ and wergeld. ‘Private settlement’ is not, of course, wergeld in the strict sense, but it has this much in common with it, that it allowed the slayer to remain in his native State for the rest of his life. His presence was not a cause of pollution.
We have seen[256] that the Greek religious doctrine of homicide as a ‘pollution’ expresses a compromise between the newly evolved power of synoekised States and the traditions of the tribes, between the ideals of an international autocratic Apollo and the claims of the Erinnyes of the slain who reflected the desires of the dead and of their relatives. It follows that whenever the laws which resulted from this compromise were observed, whenever the prescribed penalty or atonement was paid, Apollo and the Erinnyes were logically compelled to accept the ‘appeasement’ and to signify by their consent, in certain cases, to the ceremonial of ‘purgation’ that the ‘pollution’ of the criminal was washed away. But it was never forgotten that, in theory, the pollution of the slayer had a twofold source: that the stigma of bloodshed was, so to speak, bicellular, and was expressive of the anger of Apollo, on the one hand, and of the anger of the Erinnyes on the other. It is obvious, therefore, that a ‘release’ on the part of a dying victim precluded any serious anger on the part of the Erinnyes, whereas a victim’s solemn command to his relatives to prosecute his slayer[257] set in motion the entire supernatural vigour of the avenging Erinnyes. Thus in the Eumenides of Aeschylus[258] the Furies tend to go to sleep and to forget until they are goaded into activity by the ghost of the slain Clytaemnestra. Hence it is correct to maintain that in the event of a formal or presumed ‘release’ on the part of a dying victim, the slayer was not in any real sense polluted. In such cases, the slayer may have had to undergo ‘purgation’ of a minor kind, one of these local supplementary ‘purgations’ which were intended to free the citizens from religious scruple.[259] Purgation, we have said, was not symbolical of guilt, but rather of atoned guilt or of innocence. But in such cases the slayer was not really ‘polluted.’ His presence in his homeland did not anger the dead or the gods. But if the dying victim did not formally release his slayer, if he charged his relatives to prosecute, then in all cases, even in the event of justifiable homicide, the slayer was ‘polluted’ until he was formally purged. This purgation could not be performed by any ordinary person or at any ordinary time. The conditions of its performance were regulated by Delphic law and by State law. Once charged by the relatives of the slain, the accused had either to admit guilt or to advance a ‘plea,’ and the civic penalty had to be paid before purgation was permitted.
It is difficult to understand how Glotz can attribute to ‘pollution’ a considerable influence in abolishing ‘private vengeance’ and in necessitating State interference in homicide,[260] and at the same time maintain[261] that in historical State justice ‘private settlement’ was legal as an option for prosecution. Attic law proves that the slayer was ‘polluted’ during the long period of time—three or four months—which intervened between the first public accusation, at the funeral of deceased, and the trial.[262] He could not enter the city temples, or frequent the public places, under penalty of death. Glotz admits[263] that a person who was accused but unconvicted of murder was ‘polluted,’ but he seems to think that the pollution could be privately purged or ignored altogether. ‘Before the public accusation,’ one may say, ‘the slayer was not polluted.’ He was perhaps not publicly known to be ‘polluted,’ we admit. But in reality we believe that he was polluted when the ‘victim’ died without ‘release.’ If the relatives chose to hush the matter up, this did not destroy the real ‘pollution.’ If the matter became known to the public, these relatives could themselves be indicted on a charge of impiety.[264] They had broken the religious laws, the unwritten customs, of the State. They could not righteously ‘settle’ except in the event of ‘release.’
We will now support and illustrate our views by a few quotations. Demosthenes[265] tells us that ‘if the victim (ὁ παθών) himself releases the slayer from guilt of blood before he (the victim) dies, it is not lawful for the relatives to prosecute.’ This is a most important piece of evidence, although the context in which it occurs is vitiated by rhetorical exaggeration. It means, in effect, that in any kind of homicide[266] the relatives of the slain were powerless in regard to prosecution if the dying man ‘released’ his slayer and did not ‘charge’ them to avenge him. Thus even the homicide laws of a theocratic Apollo and of centralised Greek governments depend for their operation on the will of the victim. In such an event the slayer was not ‘polluted.’ No impiety, no illegality was involved in ‘private settlement’ in such a case; on the contrary, to prosecute the slayer would probably have been impious. Not even a charge of involuntary homicide (which was possible in the case of simple ‘forgiveness’ on the part of the dying) could be brought against the slayer, if the victim ‘released’ him from all guilt of blood. This decree of the dying was tantamount to a ‘release’ in law; it did not merely reduce the charge to one of justifiable or accidental slaying. Hence the ‘private settlement,’ which no doubt occasionally occurred in such cases, was not so much a bribe offered to prevent prosecution as an informal offer of material retribution—a relic of the old-time wergeld traditions of tribal Greece.
In a speech of Lysias which is concerned with political or judicial murder, we are told[267] that one of the condemned, named Dionysodorus, summoned his brother and sister and brother-in-law to prison before he died and charged them ‘and all his kindred’ (φίλοις) to punish as a murderer Agoratus who had given the false information which led to his condemnation. Thus we see converted into a charge of wilful murder an act which ordinarily would have been regarded as political perjury. The relatives of Dionysodorus actually decided to take the law into their own hands[268]—political ferment demands such drastic action—and they would have slain Agoratus as a criminal (κακοῦργος) if Anytus, the general, had not persuaded them, on grounds of public policy and expediency, to desist. The Thirty Tyrants acquitted Agoratus later, presumably because of political prejudice. The plaintiff in this speech[269] appeals to the Heliasts to do the pious and just thing and to condemn him to death. Thus we see how the relatives of a slain man were directed and compelled by the ‘charge’ of the dying. There was nothing involuntary about this case of homicide, as some writers seem to assume.[270] It was deliberate political murder.
Müller says[271]: ‘When a verdict of manslaughter was returned it was allowable for the prosecutor and the accused to enter into a compromise on the spot, if they pleased.’ He admits, however, that ‘in the regular mode of procedure, the convict quitted his country by a certain road and at a certain time and remained absent’ until he ‘appeased’ the relatives of the slain, ‘whereupon he was permitted to return home under certain prescribed forms, and, after the due performance of sacrifices and rites of purification, he was at liberty to dwell once more in his native land.’ The question of the ‘appeasement’ of relatives after exile in cases of involuntary homicide will come up for discussion later.[272] At present we are speaking of ‘compromise,’ or of ‘private settlement,’ without exile: we may note Müller’s admission as to the ‘regular mode of procedure.’ He cites no authority for his statement about a ‘compromise.’ Plato uniformly insists that a period of exile was always compulsory in cases of involuntary homicide.[273] ‘Forgiveness’ on the part of the ‘dying’—as distinct from ‘release,’ which Plato has not in mind[274]—always reduced the charge to one of manslaughter. Hence we have argued that ‘release’ abolished all guilt and pollution. Speaking of ‘forgiveness’ Plato says[275]: ‘If any person of his own accord gives an absolution (ἄφεσις) to anyone for such a deed let the purgations take place for the slayer as if the act had been involuntary and let there be a period of one year in exile according to law (ἐν νόμῳ).’ Speaking of general cases of manslaughter, he says[276]: ‘If anyone kills involuntarily a freeborn person, let him be purified with the same purgations as he who has killed a slave and let him not dishonour a certain ancient legend ... hence the slayer must withdraw (into exile) ... for all the seasons of a single year.’ The legend which Plato mentions is suggestive: ‘A freeman slain by violence was,’ he says, ‘angry with his murderer while his death was still recent ... and seeing his slayer roaming about in the places which he himself frequented (when alive) shuddered at the thought and, sore distressed, harasses with all his might the slayer and his movements, using memory as an ally in the task.’ Here we can plainly detect that minor local ‘pollution’ which was caused by the temporary resentment of the slain, and such ‘pollution’ could only be removed by a period of exile. There is a difference, then, between ‘release’ and ‘forgiveness.’ In the latter case the slayer was still ‘polluted’: the ghost has absorbed the anger of the gods which is caused by the shedding of blood. Hence we think that the relatives were not free, in such a case, to ‘compound’ with the slayer except at the risk of incurring the anger of the dead and of the gods. We agree with Müller’s statement regarding Plato[277]—namely, that his ‘scheme of criminal law is in the main based on the same principles as the Attic code.’ But in his theory of the legality of ‘private settlement’ in cases of manslaughter Müller seems to have omitted to notice these passages which we quoted from Plato. He was probably influenced, in his judgment, by one or two passages in Demosthenes which are obviously rhetorical and which we shall presently discuss.[278]