Full text of "Poine : a study in ancient Greek blood-vengeance"

POINE

A STUDY IN ANCIENT
GREEK BLOOD- VENGEANCE

By
HUBERT J. TRESTON, M.A.

PROFESSOR OF ANCIENT CLASSICS IN

UNIVERSITY COLLEGE,

CORK

Rien de ce qu'ont pense les Hellenes n'est indiffirent
h Vhistoire de la civilisation. — Glotz

1 ^ Q

1 y. 1^ »

1^-

LONGMANS, GEEEN AND CO.

3y PATERNOSTEli ROW, LONDON, E.G. 1

NEW YORK. TORONTO

BOMBAY, CALCUTTA AND MAUUAS

1923

Made in Great Britain

PREFACE

It has not been my purpose in writing this book to occupy
myself in expanding or discussing some articles written on
Greek criminal law in a learned dictionary of antiquities.
While it is true that ancient law, however crude and obscure
its expression, is not so repulsive, so inhumanly technical
as medieval or modern law, and while it is also true that a
writer on Greek blood-vengeance cannot avoid an occasional
reference to legal formulae and technique, nevertheless I
feel that a merely legal treatise would not advance the
prospects of Greek education or our knowledge of Greek
civilisation, for the simple reason that no one but a professed
student of ancient law could be induced to read it !

This work is intended rather as a supplement to the study
of Greek literature, history, and archaeology. The first part
contains an analysis of important elements of Homeric civilisa-
tion, an account of the different strata in the Homeric society
and of the religious beliefs and practices of the Homeric Greeks.
This section owes much to the pioneer work of Kidgeway
and of Leaf ; it carries, so to speak, into remote corners and
crevices the light which their genius has thrown on the general
nature and structure of early Greek society.

The second part is concerned with the Middle Age of
Hellenism (1000 b.c.-GOO b.c.) : it is an attempt to explain
the social and religious evolution of the Hellenes and to
interpret the homicide laws of the historical period in the
light of that evolution. This section is inevitably the most
* legal ' portion of the work, but an effort is made, even at
the cost of what might appear excessive repetition, to avoid
an unduly technical exposition, and the literary aspect of
the subject is constantly emphasised.

The third part is an enquiry into the origin and developv
ment of the legends which are found in Attic tragedy. These"^

vi PREFACE

legends are permeated with references to homicide, and I
have attempted to render less obscure and difficult the
problems of blood-vengeance which they contain. As such
an attempt would be utterly impossible without a previous
discussion of the homicide laws of Greece, the account of
these laws which I have given in the second part of the work
should be regarded as a necessary preliminary to the sub-
sequent analysis of these legends.

The extent of my indebtedness to modern writers on this
and kindred subjects is sufficiently indicated in the footnotes
and the second section of the Index. I must, however, express,
in addition, my obligations to Professor Goligher, of Trinity
College, Dublin, for his kind encouragement, assistance, and
advice.

My best thanks are due to my friend and colleague, Mr.
W. H. Porter, for his generous co-operation in reading and
correcting the proofs of this work and for his valuable criti-
cisms and suggestions. In particular, I owe to him the
alteration which I have adopted, on p. 195, in connection
with the restored Draconian inscription.

I should like also to record my appreciation of the accu-
racy and efficiency of Messrs. Spottiswoode, Ballantyne & Co.'s
Eeader. f^

H. J. T.

COKK,

June 1923.

CONTENTS

BOOK I
POINE IN HOMER

CHAPTER I

PAGES

Section I : The general principles of blood-vengeance, analysed and
illustrated : modes of vengeance of modern races in the Balkans,
in the Mediterranean area, and in South America : modes of
the ancient Germans, the Anglo-Saxons, and the Welsh: Bur-
gundian, Norman, Israelite systems . , . . . 1-11

Section II : Nature of the Homeric Society : Views of Leaf and

Ridgeway s feudal militarism and tribalism .... 12-22

CHAPTER II

The Pelasgian system of bio od- vengeance : current views explained
and criticised : author's view : proofs from the text of Homer :
question of a distinction between murder and manslaughter,
and between justifiable and unjustifiable homicide : collectivity
in vengeance ......... 23-63

CHAPTER III

The Achaean system explained according to author's theory : proofs
from Homeric text : question of discrimination, amongst
Achaeans, between murder and manslaughter, and between
justifiable and unjustifiable homicide : no collectivity or
solidarity in vengeance 64-77

CHAPTER IV

Judicial aspect of homicide in early Greece : current views criticised :
author's theory based on distinction between Achaean and
Pelasgian societies : arguments from survivals in historical
times : meaning of diKaa-irSKoi PacriKTJfs : the Trial Scone in
the Homeric Shield of Achilles : origin of trials for homicide 78-94

CHAPTER V

Religious aspect of homicide In early Greece i current views : digres-
sion on evolution of Greek religion : ancestor-worship : nature-
worship : animal sacra : Image-magic : anthropomorphism :
Achaean and Pelasgian contributions to Homeric religion :
fusion of Achaean and Pelasgian dogma and ritual : religious
aspect of kin-slaying amongst Pelasgians and Achaeans :
origin and evolution of the Erinnyes: origin of homicide-
purgation : comparison of Pelasgian with Achaean Erinnys, and
of Homeric Erinnys with post-Homeric and ' tragic ' Erinnys . 95-120

PAGES

viii POINE

BOOK II

POINE FROM HOMER TO DRACON

CHAPTER I

Section I: Social transitions: fall of Achaean Empire and its causes:
Achaean survivals : political changes in post-Homeric times :
post-Homeric migrations : Sparta and Boeotia : the Hesiodic
age of chaos : tribal stability and decay : evolution of the Attic
State; aristocracy and democracy ..... 127-137

Section II : Religious and legal transitions in post-Homeric times :
Asiatic-Greek intercourse : compromise between Asiatic and
Greek ideas adopted in regard to homicide : origin of Apolline
purgation system : Apollo and pollution : rise of Apolline
influence : organisation of theocratic nobles : origin of the laws
of Dracon : proofs of author's theory from Greek legends, from
Plato and Demosthenes : extradition : pollution-doctrine and
wergeld : question of legality of ' private settlement ' for
homicide in historical Athens ...... 138-190

CHAPTER II

The Draconian Code : restored inscription of 409/8 B.C. and author's
explanation : other Draconian homicide-laws derived from
Demosthenes : Plato's code confirms and supplements these
data : classification of Attic homicide-laws as follows :
(o) those relating to accidental homicide, to death caused by
animals or inanimate objects, and to homicide by persons
unknown : (b) those relating to justifiable and to justifiably
accidental homicide : (c) those relating to manslaughter :
(d) those relating to wilful murder : some problems suggested
by these laws : origin of confiscation of projjerty : evolution
of State-execution : parricide and kin-slaying : historicity of
Plato's legislation regarding homicide ..... 191-242

CHAPTER III

The Attic Homicide Courts : Attic legends concerning origin of courts
for homicide : the accounts of Pollux, of Aristotle, of Demo-
sthenes : question of ypaipr) (p6vov : Plato's Euthyphro : author's
theory of the origin of Attic courts for homicide : Dracon and
the Ephetae : Solon and the Areopagus : the Exegetae . . 243-275

BOOK III
POINE IN ATTIC TRAGEDY

CHAPTER I

Aeschylus : Agamemnon, Choephoroe, Ettmenides, Suppliants and

Seven against Thebes ........ 276-302

CONTENTS ix

CHAPTER II

PAGES

Sophocles: Electra, King Oedipus, Oedipus at Colonus, Antigone,

Ajax and Trachinian Maidens ...... 303-331

CHAPTER III

Euripides : Ehctra, Orestes, Iphigenia at Aulis and Iphigenia in
Tauris, Phoenician Maidens and Suppliants, Mad Hercules,
Heracleidae, Medea, Hippolytus, Ion, Andromache, Hecuba,
Bacchae, Alcestia, Troades and Helen .... 332-422

Conclusion 422-424

INDEX 425-427

POINE

«(K)K T
POINE IN HOMER

CHAPTER I

INTRODUCTION

Skition I. : 'Yho ir[>iioral prinoi^ilos of Mivvl-vtMigi^anro, aiial\"spd and il!ns-
trattnl : oustoms of uuHlorn n»oos in tho Balkans, in tho Mtxiitornvnoan aiva,
aiid in South Amorioa : oustoius of tho ancient (.lorniaiis, tho Anglo-Saxons,
ami tho Wolsh : Unrjiundian. Norman, Israolito s\-stonis.

Section 11.: llomorio Sivioty ; Viows of Loaf and Ridjjpway : feudal
militarism and trilvUism.

Section I

If \vi^ oxainino tho various mot hods of blood-v^engeanco which
lirtvo boon adopted by difToront pooplos throughout tho ages.
wo sliall find that thoy may be divided broadly into four groups
or categories. Amongst rude and savage races there exists
or lias existed a svstem of veni^oanoo which we may describe
as a barbarous and unrestricted vendetta. In the absence of
any social machinery for the determination of blood-guilt
or for the estimation of its varvim:: doi^roos. a sinjjlo deed of
blood provokes :in endless series of retaliations : a hideous
orgy of reven;;i iii^os through the land, an orgy which no
one may escape ; for old men and women and children perish,
whether one by one, or in a general massacre. The vongoiuice
is at once collective and hereditary. It strikes at the neigh-
bours and at the most distant relatives of the murderer: it
strikes, too. at the children that are born when the murderer
has been gathered to his fathers. It ends only when there is
liardly anyone loft io kill, or when a paltry sum of money is
otTorod to placate a glutted thirst for blood. It is a strange
fact that such a system should have survived up to com-
paratively recent times * in the Ralkiui States. It is generally

> In/tn, p. 4 £

2 POINE IN HOMER

but, as we hope to show, erroneously maintained that such a
system prevailed amongst the earliest inhabitants of Greece
about whom we have any certain knowledge.

A second mode of vengeance we may describe as a personal
restricted vendetta. It is distinguished from the mode which
we have just mentioned by the absence of collective or
hereditary punishment. It refuses to visit the sins of the
father upon his children or upon his neighbours. The right
to avenge remains with the relatives of the slain. They may
lie in wait for the slayer or, if he flees, they may dog his foot-
steps over land and sea. But they dare not strike the innocent
for the guilty. There is some power, whether of military
autocracy, or of public opinion, which prescribes the bounds
of their avenging. The system does not generally include
a regular tribunal for the trial of homicide, whether because
there is little difficulty, in certain social groups, in determining
the identity of the murderer : or because some primitive
method of evidence, such as the ordeal of medieval Europe,
takes precedence of human witnesses : or because a recourse
to arbitration, in the private domain of a king or of a squire,
is too insignificant a procedure to have found its way into
any historical records. It is such a system that seems to
have prevailed in Serbia up to very recent times. It is such
a system that, we hope to show, existed amongst the Achaean
caste in Homeric Greece.

A third, and for our present purpose the most important,
mode of vengeance is that which we may describe as the ' tribal
wergeld ' mode. It consists essentially of a compensation, in
the form of goods or valuables, which is paid by the relatives
of the slayer to the relatives of the slain. It differs from our
first-mentioned mode of vengeance in the fact that satisfaction
is paid in * money,' not in blood, and in the fact that payment
is fixed by custom or law and is not of an indefinite duration.
It differs from the second mode in this, that the ideal penalty
is not death, but compensation or exile, and that the punish-
ment is collective rather than personal. The system is found
only in tribal communities, where the life of the individual
is subordinated to that of the group, and where property is
frequently possessed and enjoyed in common. It is, of course,
true that aU tribal societies do not adopt this system, whether

INTRODUCTION 3

because temperament and environment foster a blood-lust
that money cannot appease, or because a religious law has
been superimposed upon the clans, or because a feudal or
highly centralised government has become strong enough to
resist the demands of the clansmen for compensation. But,
apart from these special circumstances, tribal communities
tend to adopt the * wergeld ' system of vengeance. We have
the most ample evidence ^ of its operation in pre-medieval
Germany, and Wales, and Ireland and Scotland, amongst
the Anglo-Saxons, the Franks, the Wisigoths and the Vikings.
We can see in ancient Israel an instance of a land which has
evolved beyond the wergeld stage. There came a time
when a theocratic legislator was sufficiently powerful to
attack the privileges of the clans, and to cry out, as with a
divine voice, ' Ye shall not take satisfaction for the life of a
man that is guilty of blood.' ^ We hope to make it clear
that it was this system which prevailed amongst the earliest
inhabitants of Greek lands, who may, for convenience, be
described as Pelasgians. Owing to the great number of the
individuals who were liable to make or to receive compensa-
tion, and also because of the social organisation of the tribes,
we are not surprised to find that a regular tribunal was fre-
quently appealed to, and that a trial, concerned more often
with the question of payment than with the question of
guilt, was one of the most common events of interest in
the life of Pelasgian tribesmen. No wonder is it then that
the poet Homer gives a description of such a scene ^ and
tells us that Hephaestus had engraved it on the famous Shield
of Achilles. This is the earhest reference to a trial of any kind
in all European literature.

Our fourth category of the modes of blood-vengeance is
intended to comprise all the methods of punishing homicide
which are characteristic of fully developed social organisms,
whether in ancient or in modem times. Homicide, which
was originally conceived as an outrage affecting only a family
or clan, may come to be regarded as a crime against the body
poHtic, as an insult to the majesty of the State, its laws,
its gods, or its governors. Indeed, this latter conception
usually becomes so vigorous that it obscures and ultimately

* See injra, pp. 6-11. » Numbers xxxv. * II. xviii. 600 ff.

4 POINE IN HOMER

extinguishes the former, at least in so far as that former con-
ception concerns the claims of the relatives of the victim. In
early English law the word murdrum ^ denoted a fine payable to
the king if the murderer was not produced. In feudahsm,
the lord claimed a portion of the payment made by the relatives
of the slayer. This was the honour-price, an atonement for
the insult caused by a * breach of the peace.' In historical ^
Athens wergeld was forbidden, but the property of a con-
victed murderer who went into perpetual exile was confiscated
to the State. In ancient Israel wergeld was abolished when
nmrder was conceived as a ' sin ' against the God of the State,
when it was believed that blood polluted the land.^ In
Greece, too, we hope to show that wergeld was abolished in
"* the first instance by the religion of Apollo, and that the evolu-

("""tibh of the State, if it did not assist in its abohtion, at least
■*'^*^ ensured that the abolition should be permanent. Once murder
*****^ ''becomes a sin against the gods, or a crime against the State,
the day of private vengeance has passed : that of State trial,
State imprisonment, State execution takes its place. The
relatives may still assist, they may even be compelled to assist,
in the punishment of homicide, but they have lost the right to
material compensation.

We will now give a few illustrations of the actual operation
of these modes of blood-vengeance. As the fourth or last-
mentioned mode is found in all modern States, we need not
here illustrate its operation, especially as we shall have to
describe, at a later stage, the treatment of homicide in historical
Athens.

As an example of the practice of unrestricted vendetta, we
may cite the case of the Montenegrins.^ This little people, up
to quite recent years, practised a collective and hereditary
vendetta, which continued from generation to generation, until
the number of victims on both sides was equal, or until a blood-
price of ten sequins was accepted by the feud-weary relatives of
the original victim. Again, in Sardinia,^ until the close of the
eighteenth century, a collective hereditary feud followed a
single act of murder, and hundreds of lives were lost in a single

^ See Stubbs, Select Charters, p. 201. ^621 B.C. onwards.

'See Numbers xxxv.

8 See Recluse, Universai Geography, vol. i. p. 181 fE. ' lb. pp. 346-7.

INTRODUCTION 5

year. In Corsica,i° in the eighteenth century, the vendetta-
system caused the loss of a thousand Hves each year : whole
villages were depopulated : houses became fortresses where
armed men lay in wait, hungry for vengeance, while the women
tilled the fields. A similar barbarous blood-thirst was preva-
lent in Sicily ,11 in Calabria,ii and in Albania,!^ up to quite
recent times. The establishment of an improved system of
government and the operation of disciplinary penalties have
fortunately checked and must ultimately abolish so hideous a
mode of vengeance. These peoples of the Mediterranean area
are probably, as Eidgeway holds,!^ the racial descendants of
the old Pelagasian race. For this, and for other reasons, there
is a tendency to assume that the Pelasgians followed this
system of blood-vendetta. But we hope to show that this
view is probably incorrect, and that it is much more applicable
to the Greece of post-Achaean days, that is, from 1000 B.C.
to 750 B.C. than to the Greece of Achaean and pre-Achaean
times.

As an illustration of the second mode of vengeance, we may
perhaps cite the Serbians of recent times who adopted a
restricted form of vendetta and who often allow^ed murder to
remain unpunished.!^ r^j^^ restricted system seems to have
existed amongst the Araucanians i^ of South America, and
amongst the Jivaros Indians,i^ but only when the identity of
the murderer could be established. In this latter case we
find the alternative operation of a more civilised with a more
barbarous form of vengeance. But we must not assume that
these forms coexist as alternatives everywhere. A French
authority holds ^"^ that the essential motive of collective punish-
ment was the production or identification of the murderer. ' So
long,' he says,!' « ^s the murderer is unknown, so long is the
responsibihty collective and diffused.' We cannot accept this
statement as an explanation of the origin of unrestricted
vendetta. We admit that collective penalties of a minor
kind would form a strong inducement for the discovery of
the criminal. It was for this reason perhaps that an Anglo-

" See Recluse, op. cit., vol. i. p. 3GG. " lb. p. 321 ff.

" lb. pp. 121-122. " Early Age of Greece, p. 277.

'' R6cluse, op. cit. pp. 175-6. " lb. vol. xviii. p. 442.

" lb. p. 246. " See Giotz, La Solidariti de la Famille, p. 213.

6 POINE IN HOMER

Saxon law ^^ levied a fine on the whole ' hundred ' if the
murderer was not produced. But it is one thing to bring
pressure to bear on a district, whether by a fine, as in this
case, or by an oath, as in the instance mentioned in Deuter-
onomy ^^ ; it is quite another thing to destroy a whole town
or village if the murderer was unknown. We shall see^^
that the Homeric Achaeans often waited long for vengeance,
and often allowed the homicide to go unpunished, rather than
visit with unjust punishment the innocent relatives of the slayer.
In this system there is no trace of collectivity. The relatives
have not even to pay a sum of money. The flight of the slayer
is not indeed accepted as a substitute for the normal penalty,
which is death, but it postpones indefinitely, if not for ever, a
vengeance which the slayer alone can suffer.

To illustrate the operation of the ' tribal wergeld ' system,
we naturally turn, in the first place, to the Germans of pre-
Christian days. Tacitus says ^^ of them : ' It is an indispens-
able duty to adopt the private enmities of a father or a relative
. , . these, however, are not irreconcilable and perpetual.
Even homicide is atoned for by a fixed number of cattle and
sheep and the whole House accepts the satisfaction, to the
benefit of the civic group.' Tacitus is obviously astonished
at this system of compensation for homicide. The Eomans,
like the Germans, were familiar with the organisation of the
clan, and of the tribe, but Eoman law, as far back as we can
trace it, did not permit wergeld. In Eome,^^ from 450 B.C.
onwards, the expiation of the insult which the homicide offered
to the State and its gods had driven from view, and had
therefore probably abolished, the material compensation of the
clan. The chief detail of interest which Tacitus gives us is
the collective acceptance of satisfaction by a whole House or
Family. From other sources, which we shall presently discuss,
we may infer that the House in this instance was a very large
unit, including not merely the closer kindred which traced
descent to a common living (or lately deceased) ancestor,
but that wider group of kinsmen which is called the clan.

We note also, in Tacitus' account, a reference to a fixed

" See Glotz, he. cit. " Deut. xxi. 1-8.

*" Infra, pp. 64-74. " Oermania, chap. xxi.

** See article s.v. ' Homicidium ' in Ramsay's Diet. Rom. Ant. p. 348 ff.

INTRODUCTION 7

number of cattle and sheep. Who was it that fixed the
number ? Who was it that paid ? To answer these questions
we shall cite some details of Welsh wergeld payments which
have been admirably collected and explained by Mr. F. See-
bohm.23

In the Cymric codes, the normal wergeld was a payment
of one hundred and twenty cows, but the number varied
according to the rank of the slain. For the death of a chieftain
the amount was one hundred and eighty cows : for the death
of a stranger, from thirty to sixty cows.^* Over and above
the wergeld or galanas, there was payable an insult-price or
saraad, consisting of six cows. This amount was always paid
first, from the murderer's own cattle. Within fourteen days
of the murder, a meeting of the slayer's clan or wider kindred
was convened, at which the proportion of wergeld due
from each family was determined. Usually the murderer's
family paid forty cows, or one-third of the total wergeld. Of
this amount the murderer himself paid one-third, or about
fourteen cows ; his father and mother paid one-third, and his
brothers and sisters one-third, the brothers paying twice as
much as the sisters. The remaining portion of the wergeld,
namely, eighty cows, was paid by the wider kindred. Kelatives
on the paternal side paid two-thirds, those on the maternal
side, one-third. As the clan comprised very often a large
number of people, the actual contribution of individual cousins
of the murderer would have been rather small. The murderer
himself paid, in saraad and galanas, a total forfeit of twenty
cows. But if the murderer was poor, there was paid ' spear-
penny,' which was one-ninth of the wergeld, but was collected
from male kinsmen on the paternal side.

It was not necessary that these payments should all be
made at the same time, or immediately. They were frequently
made in fortnightly instalments. The system of receiving
wergeld seems to have been parallel. It is probable that
the cows paid by the murderer's family went to the family
of the victim : those paid by first cousins went to first cousins :
those paid by paternal kindred went to paternal kindred : all
being distributed in the last resort to individuals, if the clans
involved had developed the principle of individual ownership

** See TrihiU Custom in Anglo-Saxun Law, pp. 3;j-55. " Op. cil. pp. 43 ff.

8 POINE IN HOMER

at that particular period of time. It is clear from the Cymric
codes that individual ownership was assumed as universally
prevalent. But it is certain that such a condition is not a
characteristic of all tribal communities. In the Salic law,
which operated amongst the Germans from about a.d. 500
onwards, a distinction was made between the inheritance of
* wergeld ' and that of the ' allod ' or family-domain.^^ While
the latter could only be inherited by a family group which did
not extend beyond second cousins, a group which in Wales
was called a ' gwely,' the wergeld was inherited by all persons
who could trace any kind of direct descent, however remote,
from a common ancestor of the original receivers of the
wergeld. This law seems to us to reflect an ancient system
of communistic ownership in movable property amongst the
Germans. Indeed we may infer the existence of such a
system from the account which Caesar ^6 gives of the pre-
Christian Germans. Even in the time of Tacitus the arable
land of the Germans had not yet become private property .2'
It is in this common control, or common ownership, of
wergeld that we may find the explanation of the absence
of wergeld-payments for homicide within the clan. Seebohm,
speaking of the Welsh system, says ^^ : 'A murder within
this wider kindred was regarded as a family matter. . . .
There was no blood-fine or galanas within the kindred.' We
shall find at least one illustration of this important principle
in the Iliad of Homer.^^ It is not a complete explanation
of the principle to assert, as Fustel de Coulanges would assert,^^
that the kinslayer had offended his domestic gods and that
no payment could permit the continued presence of the
murderer at the ancestral hearth fire in which the life of a
kinsman had been violently submerged. In the phratry
different clans had a common worship, and the murderer
who paid wergeld joined in that worship. We agree with
Coulanges that the attitude of the domestic gods towards kin-
slaying differed from that of the phratry-gods towards ordinary
homicide. But why ? Because primitive man creates gods
in his own image and endows them with his own emotions.

*^ F. Seebohm, op. cit. pp. 150 ff., and Maine, Ancient Law, p. 233.

** Bell. Gall. vi. 21. " Oermania, chap. xxvi. ** Op. cit. p. 55.

2» II. ii. 662 ff. ; infra, p. 47 ff. ^o gee Ancient City (trans.), p. 125.

INTRODUCTION 9

It is with man, not with gods, that the ultimate explanation
has. The real explanation of the principle is to be found,
we think, in a tradition ultimately resting on the common
ownership of property.

Accepting this principle, we can understand more easily the
punishment of kin-murder in tribal society. There are only
three alternative penalties to wergeld : exile, bondage (or
servitude) and death. It is natural to assume, and it has been
rightly maintained,^! that death was a loathsome penalty in
days when relatives alone could avenge. It was therefore
rarely, if ever, exacted. Bondage or servitude also, though
sometimes found as a punishment for homicide,^^ would naturally
be avoided as a sequel to kin-murder. There remains only the
option of exile. Like Cain, the slayer of his brother, the kin-
murderer must wander over the wide earth.^^ Expelled from
his clan, his home, his property and his gods, he goes forth to
slavery or to death in other lands. As a French writer puts
it, ' Alone, he has arrayed against him the universe.' ^*

When homicide occurred between members of different
clans, death was never inflicted on the slayer, except in the
last resort. It was, perhaps, in order to avoid this fate, that
the slayer sometimes fled into exile. But it is doubtful if
his flight cancelled any part of the wergeld except his own
individual share, or the ' spear-penny ' which he was expected
to collect, if he was poor. It is certain however that the
life of the slayer was never exposed to danger from the relatives
of the victim so long as he remained in exile. That there were
variations in the matter of accepting exile as part-payment
of wergeld will be obvious from the following facts which
we cite also as illustrations of the survival of wergeld in a
modified form under feudal or ecclesiastical rule.

In the Canones Wallici, a code of laws which operated in
Wales in the seventh century a.d., we find ^^ that the slayer
pays half the total wergeld, and his relatives pay half. The
wergeld at this time consisted of three male slaves and three
female slaves : if the slayer went into exile his half was can-
celled, but his relatives had still to pay their half, or to follow

*^ Seebohra, op. cit. p. 55 ; Glotz, op. cit. p. 34. ** See infra, p. 44 ff.

" Genesis iv. 11-16. " Qiotz, op. cit. p. 45.

** Seebohm, op. cit. p. 109.

10 POINE IN HOMER

him into exile. In the Burgundian homicide-laws of the
fifth century a.d. we find ^^ that the penalty for the murder
of a freeman was death. The older wergeld penalty, which
was now abolished for murder, was however retained in a
certain form for minor degrees of guilt. Thus, for man-
slaughter, we have a list of blood-ransoms arranged according
to the rank of the victim : for the unintentional slaying of a
noble, the penalty was a payment of 300 solidi : for that of
an ordinary man, 200 solidi, and so on. For slaying a person
in self-defence, the penalty was reduced to one-half in each
case. Amongst the laws of the early Norman Kings of England
we find ^^ the following, attributed to Henry I, in which a
group of neighbours known as guild-brethren (congildones)
are compelled to supplement the payments of the kindred.
' If anyone commit homicide of this kind, let his relatives pay as
much wergeld as they would have received if he (the slayer)
had been killed : if the slayer have relatives on the father's
side and not on the mother's, they pay as much as they would
have received, that is, two-thirds the wergeld : if the slayer
has only maternal relatives, they pay one-third the wergeld,
the congildones one-third, and himself one-third : if he has no
maternal relatives, the congildones pay half, and himself half.'
The manner in which feudalism gradually substituted the
conception of murder as an insult to a king or to a lord for
the older conception of it as an injury to the clan is clearly
seen in the following law ^^ attributed to King Henry I : ' If
the slain man has no kindred . . . half shall be paid to the
king, and half to the congildones (of the victim).' In one
portion of the Sahc law we read ^^ that if anyone slays a kins-
man and goes into exile, his goods are confiscated to the royal
treasury. Feudalism has thus exacted a new penalty which
the clan-regime did not exact.

On the other hand we find a diminution in the collective
punishment which tribal wergeld carried with it, in the
law of King Edmund (a.d. 940-946) which may thus be
rendered in modern English ^^ : 'If anyone henceforth slay
any man, (I will) that he himself bear the feud unless with
the aid of his friends he compensate it with full wergeld

36 Seebohm, op. cit. p. 123. " lb. p. 323.

»8 Loc. cit. 39 Qp cit. p. 164. *" lb. p. 356.

INTRODUCTION 11

within twelve months. But if they will not pay, I will that
all the kindred be free from the feud except the murderer,
provided they do not afterwards give him food and pro-
tection.' In such laws as these we catch a glimpse of a system
of blood-vengeance which once prevailed amongst tribal
peoples, but which soon became a mere echo, a phantom
shadow of its former self, in the march of mightier move-
ments, in the onward course of civilisation.

We have wandered far afield in the search for definite
details of the wergeld system, as we shall look in vain for
such details in the ancient literature of Greece, though we
can have no doubt that the system prevailed in Greece for
many centuries. It is true that in the laws of Gortyn we
find ^^ a classification of money-payments which were exacted
for adultery and seduction at a period which no authority
regards as earlier than the seventh century b.c, and which
is generally believed ^^ to be the sixth or fourth century b.c.
These payments varied according to the rank of the offender
and of the injured party : and also according to the particular
circumstances of the offence.*^ But at the time of the Gortyn
laws, Crete had passed out of the stage in which murder was
materially compensated. Hence these laws contain no refer-
ence to the wergeld system. We must therefore be content
to apply to the earliest societies of Greek lands the general
principles of the payment of wergeld which we find operative
in other tribal countries. We have in the text of Homer
unmistakable evidence ^^ for the payment of some form of
wergeld. The only question that arises is : was this payment
a mere sordid termination of a sanguinary feud, such as
characterised the Montenegrins up to recent years, or was it
a genuine tribal wergeld ? Before attempting to answer
this question, it will be necessary to examine briefly the nature
of the societies which existed in Homeric Greece.

*^ See Dareste-Reinach, I.J.O. tome i. pp. 352-493.

** See Caillemer, in Daremberg and Saglio's Dictionnaire, p. 1630.

" See also Glotz, op. cit. pp. 383-5. ** See infra, p. 31 ff.

12 POINE IN HOMER

Section II

Fortunately, as a result of recent archaeological explora-
tion we are now entitled to assume, what the ancient Greeks
so naturally believed, that the Iliad and the Odyssey, the
pioneer epics of European literature, are valuable historical
documents for the period which preceded and followed the
Trojan war. For our present purpose it does not very much
matter whether the poems were composed by one great poet
or by a number of rhapsodists, whether they were composed
in Greece or in Asia Minor. The important thing is that
they refer to actual places and events, to men and women
who really lived and died. Just as Seebohm accepts the
poem Beowulf as sole evidence for early Scandinavian tribal
custom, even though he describes *^ the poem as an ' AngHan
or Northumbrian recension of a story founded on Scandinavian
tradition and designed for recital at some eighth-century
royal court,' so we see in the Iliad and the Odyssey a genuine
historical picture of Greece under the Achaean domination,
even though these poems were not the work of contemporary
hands, and contain certain passages and verses *^ which are
clearly of later origin than that of the poems as a whole. It
is only necessary for us here to refer to two recent works *'
of Dr. Leaf which furnish a cogent justification for this
assumption. Professor Eidgeway, too, who has done so much
to remove the veil of obscurity which has hung for so long
over early Greece, has never wavered in his belief *^ in the
historicity of Homer. We should indeed prefer to be wrong
with Leaf and Eidgeway rather than to be right with such
critics as Gilbert Murray ** and Miss Harrison, ^° who see in the
Homeric poems the culmination of centuries of literary work,
which took final form and shape in the Athens of Solon and
Peisistratus, in the atmosphere of the Persian rather than
the Trojan war.

The Iliad and the Odyssey, however, if they are to be
correctly interpreted, must be studied in the light of

« Op. cit. pp. 56-72. " See Leaf, Homer and History, pp. 83-86, 98 ff.

" See his Homer and History and Troy.

** See Early Age of Greece, p. 635.

*• See Rise of the Greek Epic, passim. ^° See Themis, pp. 335, 445 ff.

INTRODUCTION 13

sociological analogy and archaeological research. Everyone
is now familiar with the differentiation which the learning
and genius of Eidgeway first defined in the population of
early Greece, and with the distinction which he has indicated
between the Achaeans and the Pelasgians.^^ In Homer, the
peoples of Greece are called Achaeans : but Eidgeway holds
that the Achaeans were not Greeks : that they were not even
members of any Mediterranean race ; that they were Celts ^^
from Central Europe who descended slowly into Greece, who
conquered the inhabitants by virtue of superiority in the arts
and weapons of war, who settled and intermarried with native
royal families, and who, in the course of two hundred years,
had become assimilated to the natives in language and culture,
until they lost all consciousness of difference.^^ Homer, the
poet of the Achaeans, called the Greek-Achaean host, the mixed
army of Pelasgians and Achaeans, by a name which belonged
only to the Celtic kings in whose courts he sang his songs of
praise. The Celtic Achaeans have lost their language but re-
tained their name. The Pelasgians, according to Eidgeway,^*
spoke in the time of Homer an Aryan tongue so well that
even their conquerors came to speak it and forgot their own.
Yet they were not, in origin, an Aryan race ! On this point we
find it difficult to agree with Eidgeway, though we admire the
scientific reasoning and the profound learning which support
his theory. The precise nature of the social organisations of
early Greece, Eidgeway does not attempt to decide — at least
in his ' Early Age of Greece ' : but we infer from an article
which he has written on Homeric land-tenure ^^ that he
beheved, as does Mr. H. Seebohm,^^ that both Achaeans and
Pelasgians were tribal peoples.

Some of the difficulties presented by Eidgeway's reasoning
are removed, in our opinion, by the more recent theories of
Dr. Leaf. Before the advent of the Achaeans to Greece about
1400 B.C.," there already existed in Greece, according to
Leaf, two social and racial strata : (1) a dominant non- Aryan ^^
caste who came originally from Crete, and who may be called

" Op. cit. pp. 90-337. " Ih. pp. 339, 355, 370, 406. " Ih. p. 95.

" Ih. pp. 678 ff. " See J.H.S. vol. vi. pp. 319 £F.

*• See Greek Tribal Society.

" See Homer and History, p. 41 ; also Bury's article, Quarterly Review,
July 1916. " Leaf, op. cit. p. 37.

14 POINE IN HOMER

Minoans : (2) a primitive neolithic agricultural Aryan people
who spoke Greek,^^ who were, in fact, the nucleus of the Greek
race, and who had imposed their speech upon their non- Aryan
masters. The Achaeans, in Leaf's view, came as a wave or
series of waves in the perpetual tide of invasion from the
north.^° Settling first in Epirus,^^ they pressed gradually
southwards, subdued the Minyans (or Minoans) of lolcos,^^
and the Pelasgians of central Greece,*^ crossed later to the
Peloponnese, and having conquered EHs, Laconia and Argolis,
established themselves in all the strategic positions of the
peninsula.^* They were not necessarily, in Leaf's opinion,
of different racial origin from the Pelasgians ^^ : they may,
in fact, have been remotely related to them. But the Achaean
outlook and temperament were very different from those of
the Pelasgian folk. The former were military freebooters ;
piratical adventurers,^^ bound together by that rigid obedience
to a single commander which was an essential condition of
their survival and success. The latter were tillers of the
soil, accustomed to political serfdom,^' paying such dues as
their masters exacted, following them, on occasion, to battle
and to death. One point of difference which Leaf mentions
must be here especially emphasised, as it is of vital importance
for our theory of Homeric blood-vengeance. The Achaeans,
Leaf holds, ^^ had no tribal or * kindred ' organisations, and
were merely soldiers of a common army. The Pelasgians,*^
however, were for the most part organised on the model of
tribal communities. Speaking of the Achaeans, he says '° :
' All the rites and taboos of the primitive Family-system have
disappeared and obligation only attaches to the natural kin-
ship of close blood-relationship. . . . This is what we should
expect in a race of military adventurers. Family rites do
not tend to military efficiency : the efficient soldier must break
away from local ties. In so doing he takes a long step away
from the foundations of primitive society and religion.' Thus
Leaf conceives the society of Homeric Greece as composed
of two elements : (1) a military autocracy, ruling like the

69 Leaf, op. cit. p. 37. «» lb. pp. 41, 49. " lb. pp. 49-50.

«» P. 51. *« P. 222. «* Pp. 50-52.

" Pp. 37, 247. «« P. 252. " Pp. 37, 247.

" Pp. 251-252. «9 Pp. 250, 261, 258. '° Pp. 251-252.

INTRODUCTION 15

Spartans in Laconia, a small exclusive caste held together
by the consciousness of a common origin and a common purpose
and also by the danger of hostility from without : (2) a tribal
agricultural subject-folk who lived their primitive lives in
rural areas, in villages, in unimportant towns, and even in
cities within view of the Achaean garrison. Now this con-
ception differs fundamentally from the traditional ideas of
Homeric society, and in particular from the conception of the
Achaeans as a tribal people, which we have associated with
Eidgeway and H. Seebohm. We believe that an attempt
to decide this question is necessary for the elucidation of many
Homeric problems, such as that of blood-vengeance or of
land-tenure. We shall adduce evidence, in our study of
Homeric blood-vengeance, which will serve as a confirmation
of Leaf's hypothesis. At present we will confine ourselves to
some more general arguments which can be regarded as
supplementary to the evidence which Leaf himself puts
forward.

Eidgeway, in discussing "^ the mode of land-tenure in
Homeric Greece, seeks to prove that the Homeric poems
reveal an evolution in the private ownership of land, beginning
with a stage in which, as in the Iliad, land is held in common
by all tribesmen except the king or chief whose temenos is
private and personal and probably hereditary, and progressing
to a stage in which, as in the Odyssey, ' allotments ' among
tribesmen tend to accumulate and to become more and more
a family inheritance within the tribe, without attaining to
the stage of absolutely private ownership wliich we find in
the time of Hesiod. Such an evolution is, of course, a
characteristic feature of settled tribal existence. Sir Henry
Maine, in his interesting analysis '- of the origin of private
property in land, distinguishes three stages of its growth.
In the first stage, there is communal ownership, both of land
and harvest, such as is still found among some Highland
clans of Scotland : the foodj-supphes of individuals are doled
out, sometimes daily, by 'the chiefs of the clans. '^ The
periodical distribution of tl|e ' harvest,' such as was made
by the elders of tribal Slavonic subjects in the once mighty

" J.H.S. vol. vi. pp. 319 fif. " See Ancient Law, pp. 214 fip.

" Op. cit. p. 223.

16 POINE IN HOMER

Austrian and Turkish Empires, marks a slight modification
of this system, which does not, however, affect the tenure of
land.'^ ' In the Eussian villages, however,' says Maine,' ^
* the substance of the property ceases to be looked upon as
indivisible, and separate proprietary claims are allowed freely
to grow up. . . . After the expiration of a given, but not in
all cases of the same, period, separate ownerships are
extinguished, the land of the village is thrown into a mass :
and then it is redistributed among the famiHes composing the
community, according to their number.' The third stage
finds an illustration in India, where, as Maine says,'^ ' not
only is there no indivisibility of the common fund, but separate
proprietorship in parts of it may be indefinitely prolonged and
may branch out into any number of derivative ownerships,
the de facto partition of the stock being, however, checked by
inveterate usage and by the rule against the admission of
strangers without the consent of the brotherhood.' Though
neither Maine nor Kidgeway mentions the analogy, we think
we can trace some such evolution in the old German tribes
as described by Caesar and by Tacitus. Caesar tells us '^ that
here * no one has a fixed portion of land, his own peculiar
property, but the magistrates and chiefs allot every year to
tribes and clans as much land as, and in whatever place, they
think proper, and they oblige them to remove the succeeding
year.' Tacitus, however, says '^ that * the lands are occupied
by villages, in groups, in allotments proportioned to the number
of cultivators, and are presently parcelled out among individuals
according to rank and condition : the arable lands are annually
changed.'

Such a theory of evolution in landed property within the
tribe may, however, be complicated by the coexistence, in
the same district, of tribal groups and of a dominant * feudal '
caste. Maine points out,'^ in reference to Eussian village-
communities, that * these villages are always in theory the
patrimony of some noble proprietor, and the peasants have
within historical times been converted into the predial and,
to a great extent, into the personal serfs, of the seignior. But
the pressure of this superior ownership has never crushed the

'« ^ncie»<ZoM>,p.223. "76. p. 221. '6/6. p. 223. " J5e«. GaZZ. vi. 21.
'* Qermania, chap. xxvi. adopting emendation vicia. "" Op. cit. p. 221.

INTRODUCTION 17

ancient organisation of the village.' Now if we adopt the
hypothesis of two distinct strata in the Homeric society,
namely, of a dominant quasi-feudal Achaean caste, and of a
tribal Pelasgian subject-folk, we shall be justified in assuming
that some such ' superior ownership ' coexisted with tribal
ownership in the world of the Homeric poems. We shall
expect to find a predominance of private ownership on the
one hand, and a trace or ' reminiscence ' of communal owner-
ship on the other, in the verses of a poet who reflected in the
main the atmosphere of the Achaean lords, but also, incidentally
and fortuitously, that of the subject people. We must, then,
consult the text of Homer if we hope to decide whether the
Achaeans were quasi-feudal adventurers who ruled over the
Pelasgians, without disturbing or destroying their normal
tribal hfe : or whether the Achaeans, themselves a tribal
nomadic people, adopted, by a social fusion, the tribal owner-
ship which existed amongst their subjects, the chiefs alone
possessing ' private land,' the others, common land. As the
Homeric references to land-tenure are rare and obscure, it
is obvious that the solution of the problem of Homeric land-
ownership depends entirely on the answer to this wider and
more important question.

In Iliad xii. 422-426 Homer makes use of a simile derived
from a current mode of tenure of arable land, in order to
describe the fierceness of the conflict between the Argives
and the Lycians. ' As, in a common field, two men make
quarrel over boundaries, with measures in their hands, and
strive for equal rights, even inch by inch, so, too, were they
(the Argives and the Lycians) by (the brief space of) the battle-
ments divided.' This passage proves beyond question that
the poet and his hearers were famihar with a certain degree
of communism in the use of arable land. Whether the refer-
ence is to a social condition in which, as in the German tribes
at the time of Tacitus, the arable land was redistributed
armually to individuals, or whether the land was redistributed
after long intervals of undisturbed enjoyment, as was the
custom in certain Eussian villages, it is impossible, as it is
unnecessary, to decide. The really important point which
we wish to emphasise is that there is no evidence that the
quarrelsome tillers of the soil were Achaeans. This passage

18 POINE IN HOMER

does not prove that the Achaeans Uved in clans and tribes and
possessed their lands in communal fashion. It merely proves
that they were familiar with the existence of such a mode of
possession. Incidentally, also, it proves how strong and how
passionate, even in tribal rustic folk, the instinct begotten of
even temporary private ownership may be. Yet tliis is the
principal text of Homer upon which has been based the theory
of the tribal nature of Homeric society !

In Odyssey vi. 6-10 we are told how Nausithous, the
Phaeacian, brought his people to Scheria, ' and drew a wall
around the town and builded houses, and made temples for
the gods, and meted out the fields.' Here we may observe
that elaborate ceremonial which, as Fustel de Coulanges points
out,^° was characteristic of the foundation of cities or of
settlements in Ancient Greece and Eome. The distribution
. of land was an essential condition of agricultural existence for
tribes which had already developed a certain degree of private
ownership. But this passage merely proves that groups of
people were known to change their habitations.

In Iliad vi. 190-195 we learn that a king of Lycia gave
to Bellerophon, as a dowry for his wife, half his valuables
{rc/x7]), and the Lycians gave him a domain {T€/jievo<;) superior
to that of others. Eidgeway and H. Seebohm maintain that
the only land which is held in private ownership, in the Iliad,
is the domain of kings and princes. In this passage we admit
the probable operation of tribal ownership, but we must point
out that the Lycians were not Achaeans. A more relevant
citation is Iliad ix. 574-84, a passage in which we are told that
the Elders and Priests of the Aetolians offered a choice of
their richest lands as a ' domain ' to Meleager. H. Seebohm
holds ®i that it is improbable that the richest lands were at
the time unoccupied and that such an offer therefore proves
the existence of a communal land-tenure which would admit
of such a rapid partition and consequent readjustment. Again,
we admit that tribal ownership may be inferred from this
passage, but we deny that the donors of the domain were
necessarily members of the Achaean caste. It is true- that
the Achaeans ruled over Aetolia, but there still survived many
rich Pelasgian tribes. Even if we knew that the donors were

»" Ancient City (trans.), p. 57. si Op. cit. pp. 103, 118.

INTRODUCTION 19

Achaeans, it would not be necessary to conclude that the
Achaeans lived in tribal groups, for the partition and readjust-
ment might have been equally simple for rich quasi-feudal
owners acting in unison.

In Iliad ix. 147-155 Agamemnon, the Achaean war-chief,
says that he will give to Achilles, as a dowry with his daughter,
' seven cities, around Pylos, having men abounding in flocks
who will worship him with gifts as a god and obey him.' Those
who conceive the Achaean heroes as tribal chieftains will find
it very difiicult to explain how a chief can thus wantonly
confiscate the territory of his allies. Pylos was in the
' kingdom ' of Nestor, a Minoan ally of the Achaeans. No
confederation of tribal chiefs engaged in a common war could
survive such a confiscation. But the offer of Agamemnon
becomes intelligible enough if we regard him as the leader
of a dominant military power, or as the feudal over-lord who
possessed by right of office a * superior ownership ' of all the
lands of Greece.

In Odyssey iv. 171-177 Menelaus says that he would have
given to Odysseus, had he been there on his return from Troy,
a whole ' city to dwell in,' and that he would have built for
him a house, and brought him from Ithaca, together with all
his wealth, his son and all his people, ' making one city desolate,
of those that lay around, in his domain.' H. Seebohm finds
it difficult to understand this passage in the light of his tribal
theory of the Achaeans. It is, he says,^^ unusual, and merely
shows the despotism to which a tribal chief frequently attained.
But we prefer to see in Menelaus the typical Achaean over-
lord, who by virtue of his kinship with Agamemnon, and of
his own feudal and military power, tramples with impunity
upon a whole city and moves a whole people from place to
place, not as a chief would lead his tribe, but as a medieval
baron might move his villeins from one part of his territory to
another.

In the realm of Odysseus one seeks in vain for cogent
evidence of tribal conditions. The shameless conduct of the
suitors of Penelope, in devouring the substance of the absent
Odysseus, and in plotting the assassination of his son and
heir,^3 as also the cruel hyper-vengeance which Odysseus with

" Op. cit. p. 116. " Od. xvi. 369-385.

20 POINE IN HOMER

impunity wreaked upon them, seem to us more suggestive of
feudalism and autocracy than of genuine tribalism. In tribal
communities an immense importance attaches to questions of
marriage and inheritance. The voice of the ' folk-moot,' of
the clan-gathering, can and must be heard. It is true that in
the Odyssey ^* the disguised Odysseus, in questioning his son
as to why he had not driven the suitors from his house, asks
significantly : ' Do the people hate thee ? ' But it is equally
true that in the domestic drama of the realm of Odysseus the
rank and file of the people are ignored. For our part we feel
that we move in that atmosphere of autocratic militarism
which, in ancient Thessaly or Macedonia, and in medieval
Europe, exalts the dagger of the assassin and the intrigue of the
paramour.

In Odyssey xiv. 208 we are told that when a certain rich
man, named Castor, died, his sons divided up and cast lots for
his property. This procedure would be perfectly normal in
modern society if the owner died intestate and the property
was not entailed. We hear nothing in this narration of any
clan-council having determined the right of succession, as
would ordinarily occur in tribal conditions.

In Odyssey xix. 294 it is said that the wealth which Odysseus
has amassed would suffice for his posterity even unto the tenth
generation. The selection of the number ten in this passage
seems to us to indicate a possible reference to tribal life.
F. Seebohm, speaking of medieval Welsh tribes, lays stress
on the length of time which had to elapse before a ' stranger '
could become a tribesman, pointing out ^^ that even the great-
grandson of a stranger could not be a tribesman, though he
could be recognised as the founder of an embryonic clan,
whereas a semi-servile stranger's descendants could not attain
to the rank of tribesmen until the ninth generation had
passed away. Hence the saying that a man's wealth would
suffice for ten generations could easily, in tribal language, have
become a proverb. It would simply mean that a man's pos-
terity would never be in want, for after nine generations any
man's descendants could have formed a tribal organisation and
possessed tribal wealth of their own. But must we conclude
from this that Odysseus was a tribesman ? No conclusion

«* xvi. 95 ff. 85 Op. cit. p. 51.

INTRODUCTION 21

could be less cogent. It is true that the Achaeans, at the time
of the Trojan war, were long enough settled in the country to
have produced the nucleus of clans and tribes, for they had
ruled over Greece for two hundred years. Thus the Achaean
Melampus, a contemporary of Nestor and Atreus, founded a
family in Argos, the development of which may thus be traced
in Homer ^^ :

{Antiphates — Oicles Amphiaraus — • , , ., ,
(Ampliuochus.
^ . f Polypheides — Theoclymenus.
I Cleitvis.

Here we find kinship extending to second and third cousins.
Such kinship exists everywhere in the world to-day, but it
clearly does not constitute a clan or a tribe. When, therefore,
in Homer,^' Theoclymenus is said to have killed a man who is
described as €/j.(f)v\o<; in relation to his slayer, we must not
suppose that the deceased was a tribesman. The word e/i^vXo?
should be translated as kinsman,^^ not tribesman. Several
instances may be found in Homer of tribal phrases and
expressions applied in non-tribal contexts. Thus the word
7eVo9 which ordinarily means ' clan ' is used in Homer to
denote a family in the modern sense,^^ or to mean ' blood-
descent,' and kinship.®" Earely or never does it carry its
proper meaning. If the social organisation of the Achaeans
had been of a tribal character, surely the Homeric use
of the word 76^09 would have been different from what it
actually is. Leaf calls attention ®i to the very rare occasions
on which Homer refers to such groups as the clan, the
phratry, and the tribe. Nestor says to Achilles that ' the
lover of domestic strife is a man without hearth or law or
phratry,' ®2 a^^ the same Nestor urges Agamemnon to divide
his fighting forces 'by tribes and phratries,'®^ but these sohtary
references no more compel us to regard Achilles and Agamemnon
as tribal chiefs than the tribal proverb concerning the tenth
generation compels us to regard Odysseus as a tribal patriarch.
Such references are rather, as Leaf says, ^^ ' reminiscences,'
reflections, whether in the mind of a Minoan or of an Achaean,

«« Od. XV. «' Od. XV. 273 ff.

** So Butcher and Lang, trans, ad loc. "• Od. viii. 573.

»« See II. xiii. 354 ; Od. vi. 35, 209, xv. 533. "' Op. cit. p. 251 n.

»* //. ix. 63 II. " //. ii. 31)2.

22 POINE IN HOMER

of conditions which prevailed universally amongst the subject
Pelasgian peoples.

We may then confidently conclude that the evidence of
the Homeric poems is much more consistent with the theory
that the Achaeans were a quasi-feudal military caste than with
the theory which conceives them as tribal nobles. We may
think of the Achaeans, in their relation to the Pelasgians, very
much as we should think of the soldiers of the ancient Eoman
Empire quartered in a province.^* When the Burgundians
came to France about a.d. 500 they were regarded,^* by a polite
fiction, as guests, and were presented with hospitalitas, consist-
ing of two-thirds of the land and one-third of the slaves ! When
the Achaeans conquered Greece, they lived, indeed, in garrison-
towns and sought to maintain a splendid isolation in their lofty
fortresses, but they took unto themselves the richest lands and
the fattest cattle and sheep, leaving the Pelasgians to till the
soil and to squabble about boundaries. But when after two
or three hundred years the Achaeans met a somewhat similar
fate to that which they had meted out to Greece and to Troy,
the tribal nobility of the primitive Pelasgians once more
asserted its ancient privileges.

»* F. Seebohm, op. cit. p. 122.

CHAPTEK II
THE PELASGIAN SYSTEM

Current views explained and criticised : author's view : proofs from the text
of Homer : question of a distinction between murder and manslaughter,
and between justifiable and unjustifiable homicide : collectivity in
vengeance.

The opinions which have hitherto prevailed among scholars
in regard to early Greek blood-vengeance are more or less
unanimous. They seem to be based on an assumption of homo-
geneity in the society depicted by Homer. Expressed in terms
of the modes of vengeance which we have described in the pre-
ceding chapter, the customs of Homeric Greeks in regard to
homicide have been conceived as a confusion of modes I, II, and
III — as a mixture of restricted and unrestricted vendetta and
wergeld. Thus, Eichhoff ^ holds that in Homer murder is a
' private ' affair, and that the slayer must go into exile if the
' money ' paid to the injured family is not accepted. Bury ^
says : ' According to early custom which we find reflected
in Homer, murder and manslaughter were not regarded as
crimes against the State, but concerned exclusively the family
of the slain man, which might either slay the slayer or accept
compensation.' Grote^ says: 'That which the murderer in
Homeric times had to dread was not public prosecution and
punishment, but the personal vengeance of the kinsmen and
friends of deceased. To escape from this danger he is obliged
to flee the country, unless he can prevail upon the incensed
kinsmen to accept of a valuable payment as satisfaction for
their slain comrade.' Jevons * says : ' If the family of the
murderer were not content to pay the wergeld, the murderer
generally found it expedient to flee into a far country, for, if
he remained he would assuredly be killed in revenge.' In a

' See Blutrache bei den Oriechen, chapter i.

^ See History of Oreece (second edition), p. 172.

* History of Oreece, vol. ii. p. 32. * See Manual of Oreek Antiquities, p. 407.

24 POINE IN HOMER

foot-note in Butcher and Lang's translation of the Odyssey,^
we are told that ' as a rule blood called for blood, and the
manslayer had to flee from the kindred who took up the feud.
... It is superfluous to remark that the " price " as an alterna-
tive to vengeance is a widespread custom.' Glotz ^ speaks of
death, exile, wergeld, and slavery as possible penalties every-
where. He seems to believe that there existed in Homeric times
that collective and hereditary vengeance which is so character-
istic of barbarous peoples, but for this view he has adduced no
evidence apart from post-Homeric legends. In an article in
Daremberg and Saglio's Dictionnaire des Antiquites Grecques
et Bomaines,'' we are informed that ' originally ' homicide is
an offence only against the family of the victim, and all the
members of the ' famille otitragee ' have a right and a duty
of vengeance. To escape this vengeance the murderer has no
other resource but exile. His exile will exempt his kinsmen
from the reprisals to which they would otherwise be exposed.^
As the murderer will be most often supported and defended
by his family, a war of families will lay desolate a whole
country : in course of time, and with the softening of
human character, the offended family will renounce its
vengeance, and enter into a bargain with the murderer and
his family. He will be permitted to return from exile, but,
as a rule, only by payment of ' compensation.' His relatives
will furnish him with this payment {iroivrj), at once the price
of the blood shed and the ransom of the murderer's life.
The payment is vaguely defined at first, varying with the
importance and the wealth of families. For murder within
the family (761/09), there is no question of wergeld. A com-
promise is effected by which the family waive their right to
kill the murderer on condition that he leaves the <yevo<i — ' ils se
bornent au bannissement du coupable, rompant ainsi, par son
expulsion, les liens qui le rattachaient au 761/09.' ^

All these critics appear to suggest that the early age of
Greece presents us with a more or less homogeneous but
undeveloped and quasi-barbarous race^" which slowly and

^ P. 408. ^ La Solidariti de la Famille, Book I. (passim).

' See s.v. (f)6vos, p. 439. * See supra, p, 11. • Loc. cit. p. 440.

^^ See, e.g., Glotz, loc. cit. pp. 56-7 : ' Les Grecs ont toujours senti et mani-
fest^ avee une vivacity extreme le bonheur de se venger. Le cannibalisme
qu'ils avaient pratique k I'^poque de la sauvagerie primitive, resta dans leur

THE PELASGIAN SYSTEM 25

gradually evolves into something like civilisation in the time
of Dracon and Solon. Thus conceived, the homicide-customs
of Homer are very similar to those of the Montenegrins of
modern times, who have long lived in a condition of social
chaos and who accept, in atonement for homicide, a payment
of money when there is hardly anyone left to pay it ! '

Leaf, who in Homer and History '^'^ (1915) differentiates
very clearly between the Pelasgian and the Achaean elements
in the societies of Homeric Greece, points out that to the
Achaeans * homicide is a local and ' family affair, and brings
no disability other than exile from home.' A wealthy and
generous king can give opportunities of advancement beyond
all the hopes of a narrow family circle. To an ambitious
Achaean (as witness Patroclus,!^ Phoenix ^^ and others i^),
exile in such circumstances is not a real punishment. When
Leaf observes, in regard to the Achaeans, that ' thus the
most sacred of all taboos, the shedding of kindred blood,
loses its final sanction,' he seems to hint at the existence, in
the Homeric society, of a non-Achaean attitude to homicide.
He does not however explain the precise nature or origin of
this attitude.

Moreover, in Homer and History, Leaf does not suggest
any solution of an important problem to which he refers in
previous works — the problems presented by the reference to
wergeld in the Homeric passage which describes the Shield
of Achilles.^^ In a note of his translation of the Iliad (1883),
he said ^^ : ' The trial scene is one of the most difficult and
puzzling passages in Homer. . . . The whole passage is clearly
archaic, but the difficulty lies in the fact that no parallel, so far
as we know, is to be found in the procedure of any primitive
races which throws any light upon this passage.' In his
Companion to the Iliad (1892) and in his latest edition of the
Iliad (1902), in a note on the passage in question,^' he put
forward an hypothesis which seems to suggest that he conceives

langue, s'il disparut de leurs moeurs.' On p. 57 they are compared to Monte-
negrins and Arabs.

" Pp. 253-5. " II. xxUi. 85.

" II. ix. 565. " //. XV. 334 ; //. xxiv. 480.

15 II. xviii. 490-508. '« P. 51G.

1' See also J.H.S. xiii. 123-G (1887). The view was first suggested by
Miincher (1829) ; see Glotz, p. 116.

26 POINE IN HOMER

the Homeric Greeks as quasi-barbarous peoples. Having in-
dicated the frequency of blood-for-blood retahation in the Iliad,
he interprets the trial-scene as representing a stage in the
evolution' of homicide customs from more primitive conditions.
' It seems absolutely necessary to assume an intermediate
stage in which the community asserted the right to say in every
case whether the next of kin should, for reasons of public
pohcy, accept compensation, and the missing link is apparently
brought before us here.'

By assuming that the trial-scene represents, not a murder
trial (which few now maintain) nor yet a wergeld debt trial,
i.e. an inquiry as to whether wergeld has been paid or not,
but a piece of novel homicide legislation. Leaf thinks that
' the scene gains enormously in importance.' Postponing for a
time^^ our criticism of this view, published thirteen years before
the date of Homer and History, and deferring the solution
which we shall offer of the difficulty, we proceed to state our
own theory of the homicide customs of Homer. This theory is
based in the first place on a distinction between an Achaean
dominant caste and a subject Pelasgian people ; secondly, on
the hypothesis which Leaf puts forward as to the different
character and mode of life of the Achaeans and the Pelasgians
— 'the former being conceived as a race of bellicose military
adventurers living in isolated groups ; the latter, as an agri-
cultural subject-people, tillers of the soil, who preserved intact
their tribal organisations ; thirdly, on the connexion existing
between the homicide customs of a people or caste and
their temperament and social organisation — a connexion
which is established by a general study of blood-vengeance
amongst various peoples ; and, finally, on a correct interpreta-
tion of the text of Homer.

Our theory is as follows : there existed in Greece at the
period of the Achaean domination (1300-1100 B.C.) two
fundamentally distinct social strata, each having a distinct
characteristic attitude to homicide, and observing distinct
modes of blood-vengeance. The two modes coexisted side
by side without affecting or modifying each other, but their
coexistence produced a slight confusion of thought and an
absence of clear discrimination in language in the Homeric

" See infra, p. 37 ff.

THE PELASGIAN SYSTEM 27

poet (or poets) who were in contact with the two social strata,
and who were famihar with the two modes of vengeance, but
who almost ignored the one and exalted the other, out of
courtesy to the masters whose praises they sang. These two
modes of vengeance, which we will call respectively Achaean
and Pelasgian, may be thus described : (1) Amongst the
Achaeans the normal penalty for homicide is death. Their
system is private vendetta, of a restricted character, such
as we have already described in our introductory chapter.
The vengeance is quite personal and individual, that is, the
murderer alone is liable to the blood feud, which is therefore
neither collective nor hereditary. Vengeance is a duty which
devolves upon the dead man's sons or brothers, but we may
include the possibility of support from a kindred of hmited
extent i^ : a kindred which may be an embryonic clan, but
whose attitude to homicide is quite different from that which
normally characterises a clan. Wergeld is not accepted,
even though it is known to exist outside the caste : exile is
not a recognised appeasement or atonement, but is merely
a flight from death, and the Achaean murderer frequently
takes refuge with a king or a wealthy man. We shall
describe this Achaean system more fully in a later chapter.
(2) The Pelasgian mode will be found to be that which
we have described in the Introduction as the ' tribal wergeld '
mode, though it may have evolved from a more barbarous
mode before 1300 b.c. In this system there are three or
four recognised alternative penalties : (1) ' wergeld,' which is
the normal measure of vengeance or retribution, and which
is so frequently associated with tribahsm ; (2) exile, which
involves a formal and solemn expulsion from the ' group,' a
serious penalty for anyone born and bred in the atmosphere
of tribal life and religion ; (3) death, which is rarely inflicted,
but is a possible alternative if neither ' wergeld ' nor exile
is accepted by the murderer or his clan ; (4) we may add,
with Glotz,2o though there is no definite Homeric evidence for
its existence, the option of slavery or servitude. This is not
the slavery which is found in later times in Eome and in Greece,
when there was a regular slave trade, nor is it the temporary
' slavery ' which is involved in being ' kidnapped ' and held to

" See supra, p. 21. •" Op. cit. p. 162 ff.

28 POINE IN HOMER

ransom — ^a frequent occurrence in Homer ; it is, however,
akin to this latter condition, inasmuch as it involves a state
of bondage, from which a murderer can be redeemed, not by
the payment of such a price as his ' redeemer ' can be induced
to pay, but by the payment of such valuables as have been
determined by long tradition — his quota of the wergeld of
the clan.

Proofs from the Text of Homer

In our introductory chapter we pointed out the connexion
which exists between the homicide customs of a people or
caste and their temperamental outlook and social organisation ;
we have quoted Seebohm's views as to the essentially tribal
character of the wergeld-exile-death system ; and, therefore,
anyone who accepts Leaf's hypothesis as to the nature of the
Achaean and Pelasgian social strata will be prepared to admit
that our hypothesis as to Pelasgian blood- vengeance is logically
a priori probable. In a later chapter we shall seek further
confirmation of our theory by explaining the difference in the
religious beliefs of the Achaeans and the Pelasgians, and by
indicating their different attitudes to the judicial aspect of
homicide. We now proceed to the crucial test of our opinions
— ^the evidence of the Homeric poems.

In Homer the word Trotvij occurs very frequently. Glotz ^^
thinks the word is connected with the verb TLveiv (to pay).
He says : ' De vrai, irotvrj doit etre rapproche de rivco et des
mots apparentes, tlw/xi, Ti/jbdco, TLaa, nix'q' Others ^^
however hold that it is connected with the root pu, found in
Greek irvp, and Latin purus, punire, poena. The word airoLva
seems akin in origin to ttoivj], but in Homer it is invariably
used of a ransom or gift of valuables.^^ We do not think
that Glotz 2* has quite succeeded in his attempt to prove
the evolution of the word ttoivij from an earlier meaning of
' blood-vengeance ' to a later one of pecuniary satisfaction, at
least within the limits of the Homeric poems. His reasoning
is very similar to that known as ' squaring one's premises
to one's conclusions ' : he is not aware of any distinction

21 Op. cit. p. 105.

■^* Pott, Corssen, Curtius, quoted by Glotz, loc. cit.

" E.g. II. ix. 131-2, avepelffi' diroiva. 2' Op. cit. p. 110.

THE PELASGIAN SYSTEM 29

between Achaeans and Pelasgians, and he finds the Homeric
use of iroivrj rather difficult to explain. He must have
been aware of the fact — one which we consider of great
importance — that in Homer the word Trocvrj nearly always
means ' punishment ' or ' revenge ' rather than ' compensa-
tion ' or ' ransom ' : he is certainly aware that, while ttocv^
can mean a pecuniary satisfaction for a material wrong or
injury, and can mean the ' ransom ' of a captive or of a warrior's
dead body, nevertheless there are only two instances in all
Homer in which ttolvt] can be formally interpreted to mean
wergeld. Thus he says,^^ ' On songe aux deux passages de
riliade ou il est formellement parle de composition pour
homicide. Ce sont le discours d'Ajax a Achille au chant ix
et la scene judiciaire figuree sur le bouclier d'Achille au
chant xviii.' It is by a close examination of these two
passages that we hope to solve the difficulty connected with
the Homeric ttocv?]. But, first, let us say that the word
TToiv)] is precisely the kind of word which may easily possess
a general as well as a special significance. The ideas of ' pay-
ment ' and ' punishment ' may, in certain circumstances,
coalesce : and it is probably because Homer was subconsciously
aware of the fusion of ideas involved in the use of the word
TToivri, that he employs another word of kindred meaning,
dvoiva, to denote a payment in which the idea of * punish-
ment ' is absent or obscured.

In Homer, the word ttolvi] is used to denote a variety of
ideas ranging from ' punishment in general,' such as death
inflicted in vengeance, to ' compensation for mjury ' : thus in
Iliad xvi. 398 Patroclus, having slain many foemen in battle,
Is said to have thus exacted vengeance (or payment) for many
Greeks who had fallen :

Krelve fieTataacov, TroXeoiv S' direrivvro ttoivtjv.

There is no question of ' payment of goods ' or * wergeld ' ;
it is merely the vengeance which a warrior inflicts upon his
enemies. In Iliad xxi. 28 Achilles chooses out twelve Trojan
youths whom Tie afterwards burns on a funeral pyre. His
motive may have been to placate the shade of Patroclus, by
sending him ' souls ' to be his slaves in Hades, or, less probably,

" Op. cit. p. 114.

30 POINE IN HOMER

to gratify the desire of the shade for vengeance. The youths
are spoken of as iroivr] HarpoKXaco : clearly they are not
' goods or valuables,' and are neither ' paid ' nor ' received.'
The poet may have been conscious of an undercurrent of
meaning, if he had known of bondage or slavery as a
penalty for murder in the tribes. But the slaying of Patroclus
was not murder ! The ttoiv^ of Patroclus is not even ordinary
blood-vengeance, it is merely the retaliation of an indignant
warrior.

Again, in Odyssey xxiii. 312 Odysseus tells Penelope how
he exacted from the Cyclops punishment for the slaying
of his companions, — co? aTrertaaro ttolvtjv l(pdlfM(ov irapcov.
The Cyclops was regarded by Homer and the Achaeans as one
of a lawless band of men who, as the poet says, ' have no
plants or plough, no gatherings for council nor laws — each
one giveth law to his children and wives, and they reck not
of one another ' : he was thus the very antithesis of tribal
or of civic society. The payment exacted was not wergeld,
but the loss of an eye ! In Iliad v. 266 ttocvi] denotes merely
compensation for injury — there being no question of murder
at all. Zeus, having carried off Ganymede, the son of Tros,
gave Tros a gift of horses as compensation — vlo<; ttocvtjv
Favv/jb'^Seo'i. It was really a case of ' kidnapping,' but
Ganymede was not ' held to ransom ' — a price is paid for
his loss, which is very different from wergeld.

In Iliad xiv. 483 Akamas having slain Promachus tells
how * Promachus sleeps, done to death by my sword, lest a
brother's vengeance {iroivrj) be too long unpaid.' Here we
have a formula of blood-vengeance applied to the collective
vengeance of war. Akamas does not seek the life of Ajax,
the slayer of his brother, but is satisfied by slaying any in-
dividual of the enemy as a * satisfaction ' for his brother.
But there is no question of wergeld : death is the penalty
desired and exacted. Though the phrase hrjpov anro^ could
be regarded as a reminiscence of the wergeld system, in
which a period of time was normally allowed for payment,
it is quite naturally applicable to blood-for-blood revenge,
as h'qpov can simply mean * a long time,' and the tendency
of such vengeance was to quick retribution.

In Iliad xiii. 659 we are told of the slaying in battle of

THE PELASGIAN SYSTEM 81

Harpalion, son of Pylaimenes, king of the Paphlagonians.
' And the Paphlagonians tended him busily, and set him in
a chariot and drove him to Ilios sorrowing, and with them
went his father, shedding tears, and there was no atonement
[iroLvrj) for his dead son.' It is obvious that even if we
suppose the Paphlagonians (who were not Achaeans) to have
had clans and tribes and wergeld payments in their normal
home life, we cannot attribute to them any expectation of
wergeld for a man killed on the field of battle. Nor could
the absence of such a compensation, to a king who had much
more wealth than he could ever enjoy, be regarded as a cause
of tears. Hence the word Troivrj here must mean blood-
vengeance, the satisfaction arising from blood-for-blood
retribution : and this satisfaction was frustrated because
the Paphlagonians did not happen to see the man who slew
Harpalion.^^

There are only two passages in Homer in which ttolvti
unmistakably refers to the genuine wergeld penalty. If
those passages were missing no one could speak of wergeld
as a penalty for homicide in the society described by Homer.
We shall now examine those passages with a view to showing
that they do not represent the normal system of the dominant
Achaean caste, but are merely what Leaf would call * remi-
niscences,' traces of a system with which Homer and the
Achaeans were famihar, but which they did not adopt or
practise amongst themselves.

In the first passage {Iliad ix. 632-7) the scene is the tent
of Achilles before Troy. Owing to the secession of Achilles
from the Greek fighting-hne the Trojans had been rapidly
gaining the upper hand and the Greeks were only saved from
destruction by the sudden approach of night.^' An embassy
is sent from Agamemnon to Achilles to induce him to waive
his wounded pride in the interest of the Achaeans, and promising
not only the restoration of his concubine Briseis but also a
grant of seven cities in the Peloponnese and many splendid
gifts. Achilles rejects every possible ' satisfaction ' ^^ and

'* Compare the weeping of Hrethel, when his eldest son was killed by his
second son — ^and no vengeance was possible within the ' family.' Beuwulf
(2464), quoted by F. Seebohm, p. 63

" n. viii. 500 ff. " II. ix. 378-386.

32 POINE IN HOMER

implies that the insult offered to him was so great that nothing
short of the destruction of Agamemnon and his army would
assuage his wrath. Odysseus and Phoenix having failed to
bend his haughty spirit, the third member of the embassy,
Ajax, son of Telamon, who was certainly an Achaean, re-
proached him with his indifference to the fate of his Achaean
comrades, who loved him, and reminded him of the self-
control possessed by other men in directing their passion
for revenge, even when afflicted by a much graver injury —
that of murder. ' Yet,' he says, ' doth a man accept payment
{•woivrj) from the murderer of his brother or for the slaying
of his son : and the manslayer abideth in his home-land when
he hath paid a goodly price, and the man's heat and proud
spirit is restrained when he hath accepted the payment — but
for thee the gods have put within thy breast an evil and im-
placable spirit.' When Ajax delivered this speech, he had
already despaired of the success of the embassy ^^ : and he
mentioned the act of the receiver of wergeld, not as the
act of a normal Achaean hero — the Achaeans of the Homeric
age are of a very different type — but as an act which was
characteristic of a well-known kind of temperament, an act
which, he thought, might serve to emphasise the extreme
abnormality of Achilles' desire for vengeance. If Achilles
had had a son or a brother who was murdered, and if he were
on the point of crushing a whole village in revenge, the argu-
ment of Ajax would have been more relevant to the case, but
even then it could not be taken to imply that either Ajax
or Achilles was a member of a society in which wergeld
was a recognised penalty. It is significant also that Achilles,
in his reply, makes no reference whatsoever to this argument.
Viewing Homer as a whole, it seems more than probable that
this almost solitary instance of wergeld was introduced by
the poet, who ^^ was aware of the existence of the wergeld
system, but was not concerned with its details. We need
not call attention to the non-factual nature of recorded speeches
even in Greek prose writers, and a fortiori in the epic poets
who reconstructed speeches more or less as a historical novelist
would at the present day. It is in a similarly casual way that
Homer gives us his one solitary reference to a common tillage

*» II. ix. 625. =» See infra, p. 43.

THE PELASGIAN SYSTEM 33

field 31 — a reference which Eidgeway makes a basis for very-
wide generahsations as to Homeric land-tenure. No Achaean
uses the words ; they are the poet's own : hence they can
easily be applied to conditions of tenure with which the poet
was himself acquainted, but which were not necessarily adopted
by the Achaeans during their domination in Greece. In
regard to the wergeld passage, Glotz suggests that, while the
verses themselves would lead one to suppose that a certain
* superior force ' constrained the kinsman of the victim to
forgo blood-vengeance by accepting a blood-price, still they
do not prove that there was any ' social justice ' to intervene
and impose a settlement or to indicate the amount of the
wergeld. ^2 This view we cannot accept. There is no
exphcit 33 reference, of course, to any ' social justice,' but
the temperament which forgoes blood-vengeance and accepts
wergeld is the product of a social system which restricts
and controls the human passion for revenge. The Achaeans
were above and outside such a system : the Pelasgians, we
think, were born and bred in it, — perhaps for centuries.
Allegiance to his tribal or civic unit and its laws alone could
restrain primitive man — especially in Southern chmes where
passion dies very hard — from following the promptings of
his natural blood-thirst. In course of time individual members
of a settled agricultural tribe would inevitably develop a
restrained temperament, through their fear of violating those
unwritten laws of which Antigone said ^^ that they ' are not
of to-day or yesterday, but no man knows the time which
gave them birth.' The Achaeans, who hved in every-day
contact with such types of men, must have observed even
though they did not imitate their self-restraint, and all the
more because it was a quality which the Achaean caste-
atmosphere could not produce.

The second of the two genuine wergeld passages in Homer

*^ See Iliad xii. 422 and supra, p. 17.

'* Op. cit. p. 115. ' Rien ne prouve ici que la justice sociale intervienne
k quelque titre et de quelque maniere que ce soit, ni pour imposer ou conseiller
un accommodement, ni pour indiquer le montant de la composition.'

'* //. ix. 634 suggests an ' arrangement ' by which cither (a) exile absolved
the clan from punishment (c/. Laws of King Edmund, Sccbohm, p. 'SM\) or (b)
exile was accepted in lieu of the murderer's share of the wergeld (r/. C'anonos
Wallici, quoted by Seebohm, op. cit. p. 109).

'* See Soph. Antigone, 456-7.

34 POINE IN HOMER

is found in the description of the Shield of Achilles.^^ This
passage raises many problems and causes serious difficulties
to Homeric scholars. Eidgeway, who holds that the Achaean
shield was of a round shape, and who assumes that the Shield
of Achilles was therefore round, still finds nothing in Homer's
description to suggest that the Achaeans manufactured this
particular shield. ' It is probable,' he says,^® ' that whilst
the shape of the shield and the style or ornament are derived
from central Europe, its technique discloses the native
Mycenaean craftsman employing for his Achaean lords the
method seen in Mycenaean daggers.' Monro ^' also points
out that ' in choice of subjects and in the manner of treatment
there is a remarkable agreement between the Mycenaean re-
mains and the Shield of Achilles.' All the pictures, he observes,
are taken from incidents of every-day life, and the absence of
any references to commerce or seafaring life suggests the
antiquity of the picture.^^ Leaf, in his translation of the Iliad
(1883), 3^ makes the following comment : ' The whole passage
is clearly archaic, but the difficulty lies in the fact that no
parallel, so far as we know, is to be found in the procedure of
any primitive races which throws any light upon this passage.
Homer so constantly represents the kings as the keepers of
the " traditions," and therefore sole judges, that he must have
been consciously moving in some different world when he
depicted the Shield : a world, too, in which there is no mytho-
logy and no sacrifice and nothing distinctly Hellenic' In
his Companion to the lliad'^^ (1892) and in his latest edition
of the Iliad (1902) he has proposed a solution ^ of the problems
raised by this passage. He suggests that the passage does
not refer to a murder-trial, nor yet to an inquiry into the
question of payment of wergeld (as he held in his translation *2
of the Iliad), but that it is an account of the establishment
of a new murder-code, which abolishes private vendetta and
substitutes a compulsory ' wergeld ' system. We will now
quote the portion of this famous passage which relates to
homicide — and we will offer a solution of the difficulty.

3s II. xviii. 490-508. »• Op. cit. pp. 473-4.

" See his Edition of Iliad, vol. ii. pp. 340-1. ^' See Monro, loc. cit.
«» P. 516 ; supra, p. 25. " P. 312.

*i See also J.H.S. xiii. pp. 123-6 (1887), and Glotz, op. cit. p. 116.
" P. 516.

THE PELASGIAN SYSTEM 35

On the Shield are depicted, amongst other things, two cities,
one of which is in a state of siege, the other in a condition of
peace. It is with the latter city that we are here concerned.
In this city two ' events ' are described : the first is a wedding,
concerning which we need only say that it is an event of common
occurrence, which is not in the least degree novel or abnormal ;
the second event ^^ is a dispute about the ransom of a slain
man, which takes place in the dyopd of the city, in the
presence of the Elders, of the sacred heralds, and of a cheering
crowd of people. Leaf's original translation (1883) (some
of which he has since abandoned, not, as we think, wisely)
is as follows : ' But the folk were gathered in the assembly-
place ; for there a strife was arisen, two men striving about
the blood-price of a slain man : the one avowed that he had
paid all . . . but the other denied that he had received aught,
manifesting it to the people : and each was fain to obtain
consummation on the w^ord of his witness ^* : and the folk
were cheering both, as they took part on either side. And
heralds kept order among the folk, w^hile the Elders on polished
stones were sitting in the sacred circle and holding in their
hands staves from loud-voiced heralds. Then before the
people they rose up and gave judgment each in turn. And
in the midst lay two talents of gold to be given unto him who
should plead among them most righteously.'

This is the traditional view, which regards the scene as
an investigation by the Elders of the city as to whether a
recognised wergeld has or has not been paid. It is followed
by Glotz, who proposes however some curious explanations
of details, which we shall presently discuss. It is the view
which we shall adopt when we have explained more precisely
the exact nature of the ' court.'

There is however a second view, adopted by Leaf in 1887,
1892 and 1902, first propounded by Miincher (1829), and
supported by other scholars,^ which regards the scene as
describing the first interference on the part of some higher
authority with the chaotic blood-fouds of savages.

Thirdly, there is the view of Lipsius that the trial was a
genuine murder-trial, and that the two talents of gold referred

" 490-508. ** ttrrup, seo infra, p. 43.

*' E.g. Hofmeister, Leist, Darcste ; see Glotz, loc. cit.

86 POINE IN HOMER

to by the poet represented a genuine wergeld. This view
is now generally rejected and we shall see presently the objec-
tions which militate against it : but our first duty is to formulate
the arguments which will induce us to accept the first and to
reject the second hypothesis.

First of all, we have already protested against the opinion
which represents the early Greeks as cannibals living in a
state of barbarism. In our view, the only period of Greek
history to which such a conception may, with any justice,
be applied is the period of the Dark Ages which succeeded
the Trojan war, when continual migrations and the breakdown
of tribal solidarity gave a temporary reality to the picture
which is drawn for us by Hesiod. The Pelasgian, Minoan,
and Achaean periods, however, present to our minds societies
enjoying a civilisation which was regular and orderly, and a
culture which was real and distinctive, even though it was
also primitive. Again, the arguments which Leaf bases on
the linguistic interpretation of one or two verbs in this
passage are not only inconclusive for his hypothesis, as Glotz
rightly holds, ^^ but suggest, we think, the opposite deduc-
tion. In 1883 Leaf translated the words 6 fiev evx^To
iravT airoZovvai . . . o 8' avaivero fjurjSev kXeaOat as ' the one
avowed that he had paid all . . . the other denied that he
had received aught ' : but in his latest edition of the Iliad
(1902) he translates them (to suit his changed hypothesis)
thus : ' the one offered to pay all . . . the other refused to
accept aught.' He admits, of course, that the verbs can have
the meaning which he gave to them in 1883. But he omits
to note the solitary word iravra which we consider a decisive
factor. If a man is said to ' pay all ' surely that ' all ' must
have been a sum fixed by a traditional arrangement. We
can find no parallel, in wergeld-paying communities, for a
judicial decision on the part of the tribe which compels a
relative of the victim to accept the wergeld which the
tribe of which he is a member has traditionally recognised
as the complete payment of the debt. It is only if payment
is in default or dispute that the tribe would assert itself
to prevent a feud of blood. When Homer adds, after the
clause 6 S' dvaiveTo fMijBev eXeadat, the words B^fiw TTLcfjavaKcov,

«« Op. cit. p. 116.

THE PELASGIAN SYSTEM 87

surely this means ' declaring it to the people ' rather than
' manifesting it to the people,' for it is absurd to suppose that
the actual wergeld was included in the scene, since such
a payment, as we have shown, usually consisted of cattle and
sheep.

Again, we may mention what we consider a very serious
weakness in Leaf's later position. He has to assume that the
scene in question is not a single scene, but two scenes.
He thus describes the affair in his Companion to the Iliad^''
(1892). 'A man has been slain: the homicide has offered a
money payment in commutation of the death, but the next
of kin refuses to accept it. Both parties come into the
pubhc place attended by their friends and dispute. This
scene ends here. The next scene shows us the dispute re-
ferred to the Elders, the King's Council, who are to decide
what course is to be taken. The importance of this double
scene lies in the fact that it shows us criminal law in its very
birth. No criminal law can be said to exist when it is a matter
for private arrangement between the homicide and the next
of kin to settle the offence, if they like, by a money payment,
instead of by the normal blood revenge, which means the exile
of the homicide if he is not killed. But criminal law begins
when the people claim to have a voice in the question and to
say that the money shall be accepted.' We will merely say,
by way of comment, that this two-scene theory not only is
artistically improbable but finds no support whatever in the
text of Homer.

A period of thirteen years separated the date of the Com-
panion from that of the publication of Homer and History.
Though in this latter work he does not mention the Shield of
Achilles, still we feel that if Leaf had apphod his later theory of
the distinction between Achaeans and Pelasgians to the solution
of his earlier problem, he could have throwTi considerable light
on the question. In 1883 it was the absence of a king in the
trial that troubled him. But is it not now clear that the
* Kings ' of Greece from 1300 b.c. to 1100 b.c. were Achaeans,
bellicose war-lords, who held in their hands the ' sceptres ' and
dealt out dooms to the people, but who took little interest
in local disputes, who did not understand, perhaps, and

" p. 312 ff.

88 POINE IN HOMER

probably did not adopt, many of the Pelasgian ' dooms ' ? ^^
Hence, if we suppose that the Elders in this scene are not
Achaeans but Pelasgian chiefs of clans and tribes, we can
quite easily understand the absence of the Achaean king or
over-lord.

Leaf gives us a very clear picture in Homer and History ^^
which we may utilise to remove the difi&culties which he felt
in 1883. ' All this time,' he says, * the main population of
Greece was going on with beliefs and customs undisturbed,
unaffected by the change of masters ^^ at the Castle. The
group society of the Pelasgians — (f)v\7], 761/09, j)paTpia — 'Con-
tinued intact, abiding its time. The epic of the Achaeans
takes no notice of it, why should it ? The Achaeans knew
little and cared less about the customs of their subjects, unless
at times called in to settle disputes based on silly family usage,
unworthy of a lord's notice.' Though Leaf does not say so
explicitly, we think that in his conception of the Homeric
wergeld he is now much nearer to the position he held in 1883
than to the positions he adopted in the intervening period.

If we combine then the arguments based on the text of
this Homeric passage with the results of Leaf's latest researches
and also with the general principles outlined in our Litro-
ductory Chapter, we may conclude that this trial-scene
presents us with a genuine wergeld dispute, not within the
Achaean caste, but amongst the Pelasgian tribal folk. We
have seen that scholars are unanimous in holding that the
Shield is of an essentially Mycenaean and therefore Pelasgian
pattern. We have quoted Seebohm at length for the con-
nexion between the wergeld-system of homicide-compensation
and tribal organisation and control.^^ We have quoted
Leaf's recent views as to the probable existence of clans and
tribes among the Pelasgian subject-people. The conclusion
we have drawn is therefore a practically self-evident deduction
from assumed premises.

Before we apply this general conclusion to the solution

** For a fine illustration of Achaean ' arbitration ' in homicide, see Euripides,
Hecuba (1130 ff.).

*• P. 258. *" Minoans or Achaeans.

" C/. Glotz, op. cit. p. 122. Aussi celui, qui traite au nom d'une famille
l^see, doit avoir pleins pouvoirs d'agir au nom de tous ou en referer au groupe
<ju'il represente.

THE PELASGIAN SYSTEM 39

of minor difSculties presented by this Homeric passage, it
may be desirable to discuss briefly the view of Lipsius which
has been already mentioned. He maintains that the trial
in question was a murder-trial — a decision of homicidal guilt
or innocence : he therefore holds that the two talents of gold
were the actual wergeld. He says ^^ ; ' Upon him (of the
claimants) who, according to their {i.e. the judges') opinion —
at any rate in the verdict of the majority — has given his
opinion best, are bestowed two talents of gold which have
been laid down in front of them. They {i.e. the talents)
constitute, therefore, the objects of the dispute, the amount
of the blood-atonement which the accused deposits and is
to get back in case of victory,^^ but otherwise must transfer
to the plaintiff.' This opinion has been attacked on many
grounds, but chiefly on the ground that the sum of two
(Homeric) talents of gold is too small to constitute a wergeld-
payment.^* But it does not follow that the Achaean standard
of values was necessarily that of their Pelasgian subjects.
Even though it is true that in Homer a goodly price is paid
for a freeman sold as a slave ^^ ; for a woman ^^ ; and for
the ransom of the kidnapped son of a king ^"^ ; although a
' ransom unspeakable ' {aTrepeia-L airotva) is offered for a
warrior's life on the field of battle ^^ ; and Lycaon, son of
Priam, is kidnapped and sold as a slave for 100 oxen and
liberated by a ransom of 300 oxen ^^ : — although ten talents
of gold is an insignificant portion of the ' placation ' offered
to Achilles, ^° and two talents of gold is the reward paid by
Aegisthus to his scout, ^^ there is nothing in all this to prove
that, amongst the poor tribal tillers of the soil, the sum of
two talents of gold (which, though it was not real money, was
still a valuable commodity) may not have sufficed as wergeld
for a tribal race ruled over by strangers. The really insuper-
able objections which we find to the view of Lipsius are the
following : In the first place tribal wergeld, even where it
is comparatively small, as it was in Ireland under the Brehon

** See Das Attische Recht und Rechlsverfahren, Einleitung, pp. iv. S.

** That is, if he was proved to be innocent of the crime.

" See Leaf's note in edition of Iliad (1902), p. 611 ff.

" Od. XV. 388. " Od. xv. 429. " Od. xv. 452.

" II. X. 378. »» //. xxi. 41-80.

«o II. ix. 264 " Od. iv. 525.

40 POINE IN HOMER

Laws, is generally a collection of numerous valuables, whether
cows or sheep or slaves. Even when money is substituted,
the coins are small in value but numerous ^^ (e.g. 200 solidi,
400 argentei). The reason for this lies in the diffused nature of
the responsibility for payment, quite a number of families
and individuals of the wider kindred being liable to contri-
bution. Secondly, there is no parallel, in analogous instances
of wergeld, for the assumption that the total amount was
collected and deposited in court at any time, much less before
the validity of the murder-charge had been established. In
this case, the accused asserts (according to Lipsius' translation)
that he had paid the whole sum : but surely cnroSovvat cannot
be taken to mean ' that the accused had deposited in court
the normal wergeld.' How could the accused assert that
he had paid it, how could the plaintiff deny that he had
received it — if the actual wergeld were deposited in court
before their very eyes ? Thirdly, to say that the two talents
would be given to the most convincing pleader is a very
strange way of describing a judgment of guilty or not guilty
on a charge of homicide. Thus the text of Homer refutes
the theory of Lipsius. Maine ^^ indicates the real function
of the two talents in this court by showing that they served
the same purpose as the sacramentum or court-fee of Eoman
law.

Assuming then that the court here described by Homer
was a group of Pelasgian tribal chiefs or elders who could
regularly be appealed to in such disputes, and who would also
perform the functions of a murder-court if any person accused
of homicide appealed to them to establish his innocence, we
shall conclude our discussion by clearing up some minor points
of difficulty.

We cannot concur with Glotz ^* in the opinion that the
result of the verdict is a matter of life or death for the
murderer. He says ' II pent y avoir un jugement de con-
damnation entrainant I'esclavage ou la mort.' ^* But quick
justice is not a characteristic of the wergeld-exile-slavery-
death system. We have seen how ^^ among the Welsh tribes

** See supra, p. 10 ; Seebohm, op. cit. p. 123 ff.

«* Ancient Law, p. 313. See Leaf, edition of Iliad (1902), p. 612.

** Op. cit. p. 119. ** Seebohm, op. cit. pp. 43-5.

THE PELASGIAN SYSTEM 41

wergeld was paid in fortnightly instalments ; and we may-
suppose that failure to pay any one instalment would have
been a common subject for litigation. In the laws of
King Edmund of England (a.d. 940-946) a period of twelve
months ®^ was allowed for payment of wergeld — ' to prevent
manifold fightings.' In the laws of Henry I. the period was
fixed by ' Sapientes.'

Again, in this Homeric passage as it is usually interpreted,
both pleaders cannot have been right. Payment of wergeld
was very different from a modern transfer of cash. It involved
a complete readjustment of the whole property of two clans,
so that hundreds of people were aware of the transaction.
If however we suppose that a portion of the wergeld was
unpaid, it will be possible to maintain that both parties were
bona fide in their assertions. We will assume that Homer,
whether he is indulging his imagination or describing some-
thing which he had actually seen on a shield, is giving us
an account of a typical wergeld dispute such as must
commonly have taken place in Pelasgian life : we must
especially remember that the accused (whom we assume to be
the murderer) and the plaintiff are isolated members of large
groups concerned in the payment, though the accused would
normally have to pay the greatest individual share, and the
plaintiff, if he was the nearest relative of the slain, would
receive a large share of the wergeld. Let us suppose, then,
that some of the wergeld had been paid, and that the part
which had not been paid was due, not from the murderer
himself or his immediate relatives,^' but from some distant
family of cousins who, unknown to the defendant, had
defaulted or were unable to pay. We can, on this assumption,
credit the defendant (that is, the murderer) with bona fides.
Or again, assuming still that the defendant is the murderer,
if we suppose that the disputed * instalment ' had been re-
ceived, unknown to the plaintiff, by a distant family of his
wider kindred for whom he is acting as the leading ' avenger '
in negotiation — in a word, if we suppose that both litigants
are acting as representatives of large groups, we can under-
stand the contradiction in their statements which would be

*• See 3upra, p. 11 ; Seebohm, op. cit. pp. 328, 356.
•^ See supra, p. 7.

42 POINE IN HOMER

less intelligible if they were speaking for themselves personally.
And have we not here a clue as to the constitution of the
crowd which attended at the trial ? Homer distinctly says
that the crowd ' cheered on both parties ' ^^ : and he adds :
* taking part on either side ' ^^ : so interested were they in
the issue, that the heralds had to maintain order. '^° This
implies that there was a certain danger of rioting amongst
the crowd — of something like the ' manifold fightings ' ''^ of
the Anglo-Saxons.

We cannot agree with the general view that this scene
must be expected to contain a picture of intense public
interest. '2 The parallel scene, in the city at peace, is a
wedding ! The Shield-picture contains also a reaping scene
and a ploughing scene. Surely the artist was not so much
at pains to reveal subjects of public interest as to depict
topics of common occurrence. To us it seems obvious that
one of the most frequent scenes of tribal life was a wergeld
dispute : and as this dispute concerned the property of a
large number of people, all such persons would be naturally
interested in the verdict. In all ancient codes prominence
is given to laws relating to theft, to inheritance, to marriage
settlements and the like, rather than to what we should now
consider graver matters. The reason is, that all ancient
thought and religion centred around questions of property.
Hence we think it more than probable that the ' folk ' of the
Homeric trial scene are not the general public but are
rather the wider kinsmen of the plaintiff and the defendant.
It would be not only natural but also right that they should
have supported each one his own side, just as they would do
in the event of a clan feud. But the success with which the
heralds checked the passions of the people shows how very
different the ancient Pelasgians were from the barbarous
races who only accept wergeld under duress, and who hail
with triumph the slightest pretext for another feud. Glotz,
who thinks of the Pelasgians as he would of any barbarous
primitive people, thinks therefore that in this scene the crowd
came together armed to the teeth ! ' Les hostilites, un instant

•* \ao\ 5' afipoTfpoKTiv iir'fiirvov. " afxcpls aptayol.

'0 K-fipvKes 5' &pa \ahv ipijTvov, 'i Seebohm, op. cit. p. 356.

" Leaf, edition of Iliad (1902) p. 611 ; Glotz, op. cit. p. 118 S.

THE PELASGIAN SYSTEM 43

suspendues, menacent d'eclater a nouveau. Les deux ennemis
qui deja se resignaient mal a une transaction, echangent des
injures, en attendant qu'ils se cherchent les armes a la main.' '^
What now, we may ask, is the meaning of ta-rcop in this
passage ? Homer says :

d/j,<f)0) 8' liadrjv iirl caropt Trecpap kXecrdai.

Leaf, in 1883, translated thus : * and each one was fain to
obtain consummation on the word of his witness.' Later
(1892 and 1902), when he conceived that there were really
two scenes described in the picture, he regarded the ta-rcop
as an arbitrator : ' each one relied on an arbitrator to
win the suit.' We can only say that while the etymology
and use of the word la-rcop permit of both interpretations,
the relation of the verse to its context seems to us immeasur-
ably in favour of the interpretation ' witness.' We may
presume that the * witnesses ' were included in the ' people *
and were brought forward to prove the actual transference
of property which had or had not taken place. They are,
therefore, similar to the ' compurgators ' who figure so
prominently in medieval litigation. ''*

Since Homer, then, the poet of the Achaeans, has given us
only two incidental references to wergeld, we are not sur-
prised that he has told us nothing about the details of the
system. We may indeed infer that the amount payable
was very large,'^ but Glotz reveals how little he is himself
acquainted with the system when he asserts '^ that the
offender only escaped death at the cost of ruin. * La ttqlvi)'
he says, * c'cst une large, parfois peut-etre une totale
depossession de I'offenseur au profit de la partie lesee. A la
mort juste on n'echappe que par la ruine.' It is probable
that the payment took the form of ' women, cattle, or horses.' ''
But in the absence of more definite evidence '* we must fall
back on what we can learn from analogous instances. It
is for that reason that we have discussed at so much length
the wergeld system in our introductory chapter. We have
no doubt that the wergeld revealed by Homer was a genuine

" Of. cit. p. 118. '* Seebohm, op. cit. pp. 203-5; 409-11.

" II. ix. 634. '• Op. cit. p. 129.

" Glotz, op. cit. p. 118. '• Cf. also //. xxi. 41 ; Od. jv. 388, 452.

44 POINE IN HOIVIER

wergeld, and not a mere clumsy device for terminating the
feuds of savages exhausted by slaughter.

We must now search further, in the text of Homer, for
anything he may have to tell us of other alternative penalties
existing amongst the Pelasgian people. In this matter we
cannot trust to the analysis of Glotz, for he knows of no dis-
tinction between Achaeans and Pelasgians, and hence his
account is misleading.

We may say at once that we cannot find any genuine
Pelasgian reference to the death penalty as an alternative, in
cases of homicide outside the clan, though from other analogies
and, indirectly, from Homer '^^ we may infer that the option
was valid.

It is also doubtful if we can detect any genuine instances
of slavery as a penalty for homicide. Glotz calls attention ^^
to a very curious custom which is found among some primitive
peoples, the custom of compelling a murderer to have himself
* adopted ' by the ' family ' of the victim. The murderer
takes the place of the dead man ! Among the Ossetes ' a
mother does not hesitate to recognise as her son the man who
has deprived her of her son ' — but this adoption does not give
him a right to succeed to property. Glotz ^^ thinks it more
than probable that the same custom prevailed in the Homeric
epoch, for he regards wergeld as a kind of debt, and
slavery was a universal solvent of debt down to the time
of Solon, by whom it was still permitted in the case of a
daughter who was guilty of misconduct (pme en faute).^^
The offer of a daughter in marriage by Agamemnon to Achilles,
in an age when men bought women as venal chattels, Glotz
regards as a species of wergeld (Troivrj).^^ He quotes ^*
Apollodorus ^^ for the eight years ' captivity ' of Cadmus
with Ares whose son (the dragon) he had murdered — after
which Ares gave him his daughter in marriage.^^ For having
massacred the Cyclopes ,^'^ Apollo became a shepherd in the
service of Admetus.^^ Heracles, having slain Iphitus, serves
Omphale for three years .^^ The only Homeric reference

'» II. ii. 666. 80 Op. cit. p. 162.

" Op. cit. p. 163. «2 Op. cit. p. 29, and Plutarch, Sohn, 23.

«» P. 130. 8* Pp. 164, 173. «5 iii. 4. 2.

8« Hesiod, Theog. 937. "^ P. 173.

'8 ApoUod. iii. 10. 4. Cf. Euripides, Alcestis, 1-10.
8» Apollod. ii. 6. 2.

THE PELASGIAN SYSTEM 45

which Glotz mentions is a passage ^° which describes the
year's service of Apollo and Poseidon with Laomedon for a
sum of money, at the command of Zeus : they built the
walls of Troy, but Laomedon refused to pay their wages.
As there is here no question of murder, we may say that there
is nothing relevant about this Homeric passage/-'^ Nor can
we attach any weight to legends presented by ApoUodorus,
for, as we shall see, the abolition of wergeld in the seventh
century b.c. made exile the inevitable penalty for murder
and left the murderer no property to take away with him,
and therefore he had little option but to accept menial service
with a stranger.

If we reflect on the nature of the wergeld system, we shall
see how difficult it would be to apply a penal form of slavery
in default of payment within a tribe or in any definite locality.
Wergeld was essentially a ' diffused ' penalty, involving a
large number of debtors, any one of whom could, equally with
the murderer, be sold as a slave at the command of tribal
authorities. To enslave a distant relative ^^ of the murderer
for debt would constitute a severe form of collective punish-
ment : and it is much more probable that, in default of pay-
ment on the part of any individual family, the deficiency would
have been contributed by the rest of the clan.^^ It is improb-
able that an entire family or gwely would have been so
poor and needy that they could not by a series of instalments
have discharged the wergeld debt. In a law of Henry I.
it is decreed ^* that * Amends being set going {i.e. first
deposits being paid) the rest of the wergeld shall be paid
during a term to be fixed by the Sayientes.' And we must not
ignore the role of the phratores, or of the congildones, who were
selected from neighbouring clans, and who might have to con-
tribute in certain emergencies. Thus, in another law of Henry
I. we read ^^ : 'If the slayer has no maternal (or paternal)
relations the congildones shall pay half, and for half he shall

»o n. xxi. 442 ff.

»i The same remark applies to Od. xv. 388, 452, where the ' ransom ' and
temporary bondage are connected with kidnapping by pirates.

** A murderer's children are condemned to bondage for two or three genera-
tions in the Salic Law. Seebohm, op. cit. p. 1G4.

•^ Cf. the Chrenecruda of Salic Law by which poorer members throw the
burden on the richer. Seebohm, p. 14L

»* Seebohm, p. 328. »» Seebohm, p. 323.

46 POINE IN HOMER

flee or pay.' In ancient tribal Ireland an instance of bondage
is related in the Senchus Mor,'^^ but failure to pay occurs only
in the case of an illegitimate son, who would normally have no
real share in family property. There is here, indeed, a sort
of ' collectivity.' Six men of the tribe of Conn of the Hundred
Battles, including four brothers and an illegitimate nephew,
had slain a brother who was under the protection of another
tribal chieftain. A compensation was demanded, which is not
so much wergeld as a fine payable to the chief. Five of
the six men were able to pay, but the illegitimate murderer
could not pay : so his mother was handed over to the tribe
as a bondwoman in pledge. However, the fact that the slain
man had been adopted by an outside tribe, and that the money
was paid to the chief, forbid the conclusion that money was
paid for murder within the kindred in tribal Ireland or that
kin-slaying was normally atoned for by bondage in the family
of the victim.

It may be urged that slavery was accepted as an expia-
tion of manslaughter within the kindred on the ground that
wergeld was impossible, that death was too dreadful, and
that perpetual exile or outlawry was too severe a punishment.
It is obvious, from the very nature of the case, that wergeld
cannot apply to bloodshed within the clan or the wider kindred.
Seebohm has found no instance of such a penalty amongst the
tribes whose customs he has investigated. He points out that
' if it (i.e. the murder) was of someone within the kindred, there
was no slaying of the murderer. Under Cymric custom there
was no galanas (i.e. wergeld), nothing but execration and
ignominious exile.' ^' . . . ' There is no feud within the kindred
when one kinsman slays another. Accidental homicide does
not seem to be followed even by exile. But murder breaks
the tribal tie, and is followed by outlawry.' ^^ . . . ' Tribal
custom everywhere left the worst crime of all — murder of
a parent or kinsman — without redress, . . . unavenged.' ^®
Glotz, also, holds that there was no drastic punishment for
bloodshed within the clan : ' Eien qu'un parent fait contre un
parent n'est susceptible de chatiment.' i°° But the graver
crimes against one's kindred are penaHsed, he says, by exile : —

«• Seebohm, pp. 93-4. " P. 42.

•8 P. 71. " P. 129. "" P. 19.

THE PELASGIAN SYSTEM 47

' La peine la plus grave qui soit ordinairement infligee . . .
c'estl'expulsion de la famille.'^"^ \\'e believe that in all clans
which worshipped ancestors kin-slaying was usually punished
by exile, perpetual or temporary. In a later chapter, when we
come to discuss the survival of primitive clan-customs in his-
torical Attica, the grounds for this belief will become apparent.
At present we will merely say, with Fustel de Coulanges,i°^
that kinsmen would not encourage the presence of a kin-slayer
as a slave in daily intercourse with his clan, nor would they
easily permit him to take part, at least for a time, in the worship
of the family hearth — of the clan ' fire ' which he by his act
had to some extent extinguished. ^"^^ We prefer to see him, as
Glotz i°* describes it, stripped naked, and escorted to the clan
boundaries, beaten and insulted, declared an outlaw for years
or for ever for treason to his blood. Later, we shall see ^°^ that
when Athenian State-magistrates are charged with the execu-
tion of the sentence of death, the kin-slayer may no longer
escape, and his clan will refuse to have his corpse ' gathered to
his fathers.' It was thus that the King of the Wisigoths com-
manded the judge to punish with death the kin-slayer who in
the system of ' private vengeance ' saved his life by becoming
an outlaw from his clan.^"^

We find a reference to the exile penalty for kin-slaying in
Homer .1°'' We are told that Tlepolemus, son of Hercules by
Astyocheia, came to Troy from Ehodes, whither he had fled,
because when grown to manhood he had slain his father's
maternal uncle, an old man, Likymnius, of the stock of Ares.
' Then with speed he built ships and gathered much folk
together and went fleeing across the deep, because the other
sons and grandsons of the mighty Hercules threatened him.'
So he came to Rhodes, a wanderer, and his folk settled by
kinship in three tribes and were loved by Zeus.' Leaf
would probably regard this passage as non-Homeric, since it
happens to occur in the ' Catalogue ' : but this will not vitiate
our argument, as the predominant atmosphere of post-IJomeric
Greece was, in Leaf's view, that of the ' group-system ' and

"1 p. 22. 1" Op. cit. pp. 125-126.

1" Coulanges, loc. cit. "* Op. cit. p. 24. "» See Bk. II. chap. iii.

"• Seebohm, op. cit. p. 129.
1" II. ii. 662 ff.

48 POINE IN HOMER

there was no break in the custom of tribal wergeld. We may
assume ^°^ that the family of Hercules was Pelasgian. Homer
does not mention the place where the slaying took place,
but it was, possibly, Mycenae, of which Electryon, father of
Likymnius, was at one time king. Likymnius was a half-
brother of Alcmene, the mother of Hercules, whose birth,
according to Homer,^''^ took place at Thebes. Likymnius
was, therefore, a maternal uncle of Hercules and grand-uncle
of Tlepolemus. In a normal clan the avengers of Likymnius
must have included the brothers of Tlepolemus, since the
homicide affected the whole kindred-group. The case is
remarkably similar to that described in Beowulf, and referred
to by F. Seebohm,ii° j^^^ Beowulf took no part in the
quarrel between his maternal and paternal kindreds and the
quarrel was in violation of tribal usage. This is precisely the
kind of event which would have tested to the utmost the
solidarity of the kindred ; for there was a clan law that all the
members who were akin either paternally or maternally had
to act together in the avenging of a kinsman. The murder of
Likymnius — who was not a kinsman of Amphitryon, grand-
father of Tlepolemus, but who was akin to Hercules, to
Tlepolemus and the brothers of Tlepolemus— was a crucial test,
as it involved a conflict between loyalty to clan law and loyalty
to one's nearer relatives . When Homer speaks of the avengers of
Likymnius as the ' sons and grandsons of the mighty Hercules,'
it does not follow that the family of Hercules were the sole
avengers, but that, as the nearest relatives of Tlepolemus, their
action was the most important, seeing that they were the
kinsmen whose obedience to clan law was most difficult and,
therefore, most appreciated.

Glotz m does not seem to us to have rightly interpreted
this passage. He refuses to believe that the duty of vengeance
was so strict as to compel a man to exercise it against a relative
of the paternal line, in the interest of a victim of the maternal
line. Moreover, he argues that the sons of Hercules are not
the avengers of Likymnius, for, if they were, they would not
have allowed him to depart. Here, we believe, Glotz is con-
fusing the exile penalty of Pelasgian tribes with the Achaean

"« Muller, Dorians, i. pp. 411-46. "» II. xix. 99 ff.

"0 P. 64. "1 P. 170.

THE PELASGIAN SYSTEM 49

exile, which was a flight from death. They let him go,
says Glotz, because they wish to avoid a feud within the clan-^
* lis veulent seulement que le meurtrier s'en aille, parce qu'ils
entendent ne pas se brouiller avec des alhes.' i^^ \Ye think,
on the contrary, that the case of Tlepolemus furnishes a
splendid instance of the soHdarity of the clan. There was
no question of wergeld — nor, we think, of slavery. It was
a question of exile or death. The brothers of Tlepolemus
appear to lead the avengers. From this we need not infer
that Likymnius, an old man, had no sons or grandsons or
brothers living at the time. We have said that a clan conflict
was averted by the decision of the sons of Hercules to join in
avenging. Eather than tolerate in the clan society, in the
worship of common ancestors, the slayer of a kinsman, the
brothers of Tlepolemus would, if necessary, have killed him.
It is with death that they threatened him, if he remained.
But his exile was not a flight from death : he was granted a
certain time in which to build himself ships. Such delay is
characteristic of Pelasgian but not of Achaean vengeance.
There would be some difiiculty in interpreting the reference
to the people whom he carried with him into exile, were it
stated, as fortunately it is not, that they were his kinsmen.
His companions were hangers-on, lackland men who were
content to join a powerful ' exile ' emigrant. He founded in
Ehodes a city, in typical Pelasgian fashion,ii3 dividing the
folk by kinship into three tribes. It is perhaps because he
was a son of Hercules that his exile appears to be no exces-
sive penalty but a mere inconvenience. It is perhaps for
the same reason that he was loved by Zeus, the father of
Hercules .11*

For the Pelasgian penalty of exile as an alternative
to wergeld for homicide outside the kindred, the most
relevant, though indirect, Homeric reference is a passage in
the Iliad^^^ which we have already discussed, in which we

"» Glotz, p. 170. See also p. 51.

*^' See Coulanges, Ancient City, pp. 169 S.

^" Forthecxileof Amphitryon, father of Hercules, who had slain Eloctryon,
father of Likymnius, see Euripides, Her. Fur. 15 ff. For tlie slaying by Hercules
of Iphitus, his guest, an act which appears to bring no punishment save the
vengeance of the gods, cf. Od. xxi. 27.

"» II. ix. 632 ff.

50 POINE IN HOMER

hear of a man-slayer who abides among his people when he
has paid a goodly wergeld. We have already argued that
this passage refers to the tribal customs of the Pelasgians,
and that the Achaean Ajax, who uses the words, is
borrowing, for rhetorical purposes, a sentiment which did
not characterise the Achaean attitude to homicide.^i^ We
may now point out furthermore that the vagueness of the
description of the wergeld payment, both in this passage
and in that which relates to the Shield of Achilles, suggests,
if it does not prove, that the description proceeds from Achaeans
who were not famihar with the details of the system, but had
merely become acquainted with its outstanding principles.
When Homer says ' a man has been known to accept a blood-
price for the death of a brother or a son,' the statement is only
a vague description, as anyone who is familiar with real
wergeld will admit. We have seen that a large number of
people participated both in the payment and in the satisfaction.
Whether Homer can be taken to mean that exile would have
absolved the murderer's kindred from all payment, as it did in
the laws of King Edmund of England,ii^ or whether it merely
acquitted the murderer of his share of the debt,ii^ are questions
which, owing to the vagueness of our Homeric references,
cannot here be decided.

These are the only Homeric references to the exile penalty
for homicide which can be definitely associated with Pelasgian
customs. There is a passage in the Odyssey ^^ in which the
penalty is referred to, but we think it wiser to interpret the
passage as an Achaean reference, and to regard the exile as
a flight from death. Odysseus, having slain the suitors — an
action characterised by arbitrary Achaean hypervengeance — ■
urges his son Telemachus to consult with him and take joint
measures to prevent retaliation from the relatives of the slain.
He says to Telemachus : * A man who has slain a single in-
dividual amongst the folk {ivl ^rj^i(p) goes into exile and leaves
his connexions and his native land, even when the slain man
has not many " helpers " left behind : but we have slain the
mainstay of the city, those who were noblest of the youths in
Ithaca, so I bid thee take thought upon the matter.' The

"• Supra, pp. 32-3. "' Seebohm, p. 356.

"8 lb. p. 109; supra, p. 9. "» Od. xxiii. 118-120.

THE PELASGIAN SYSTEM 51

outlook of the Achaean over-lord is clearly indicated in this
passage, in the importance which Odysseus seems to attach
to the numbers or mihtary strength of the avenging relatives.
For the Achaeans, murder went unavenged if there were no
avengers or if the avengers were not sufficiently powerful to
retaliate. Blood was rarely shed in vengeance, because the
murderer usually fled and took precautions against pursuit.
The idea of fleeing when the fear of ' reprisals ' was negligible
was not very intelhgible to an Achaean, and it is mentioned
here as an instance of unusual caution, in order to emphasise
the danger for Telemachus and Odysseus who remain unpre-
pared at home surrounded by a host of powerful and hostile
Ithacans. Later on, Odysseus suggests that music and
dancing should resound in the house to prevent the rumour
of the slaughter being disseminated until he has time to prepare
his plans. 12° When, eventually, the truth became known,
the relatives of the suitors took counsel together,^^! f^ f}^Q
manner of an Achaean council of war, but not as a Pelasgian
clan or tribe assembled to judge of guilt or innocence. Some
said that Odysseus was justified in his act ; others prepare
for war. The fight ensues, and many are slain.^^a Athene ^23
intervenes to reconcile the feud ; she acts not as the patron
of clan law but as the symbol of Achaean mihtary discipline.
Odysseus does not depart into exile : the covenant which the
outraged relatives submissively enter into came from the
throne of Zeus, and pledged them to serve the king for all his
days. 124

Neither can we put forward as evidence for the Pelasgian
exile penalty for homicide the passage in the Iliad i^s in which
Priam's inexplicable appearance before Achilles and his
friends evokes in them an emotion which Homer compares
to the amazement (^ayu/So?) felt when a man * slays one in
his country and goes into exile to the house of a rich man ^^^
and wonder possesses them that look at him.' The amaze-
ment here described would be equally natural whether the
stranger was an exiled Pelasgian or, as Leaf suggests,!^' an
Achaean fleeing for his hfo. Moreover, suspicion has been

I*' Od. xxiii. 133 ff. "^ Od. xxiv. 421 ff. "» lb. 526.

"3 lb. 533. "« lb. 483. "» //. xxiv. 480 ff.

"• Reading &<pveiod. "^ JL and 11. p. 253.

52 POINE IN HOMER

thrown upon the whole passage by the reference, in two
scholia, to ' purification,' which has led Miiller ^^s to infer
that the schohasts read, in their texts, a'yviTeai instead of
d(j>veiov. We hope to show later ^^a the error of Miiller's
view that purification for homicide was a characteristic of
the Homeric age, and hence we maintain that either the whole
passage is a later interpolation or that the reading dyvcrico
found its way into some Homeric texts from a marginal gloss
of post-Homeric origin, suggested by a false interpretation
of the word cLtt] in a preceding verse.

Hence, while the poems of Homer indicate beyond reason-
able doubt the existence of a genuine Pelasgian exile penalty,
it is significant that the poet of the Achaeans tends to ignore
the exile i^° alternative as he tends also to ignore the wergeld
alternative, in the system of penalties for homicide adopted
by a tribal people outside the Achaean caste.

Voluntary and Involuntary Homicide

It is generally ^^^ asserted that primitive societies recognise
no distinction either between wilful murder and manslaughter
(which presumes a certain degree of guilt), or even between
wilful murder and accidental slaying. The reason assigned is
that bloodshed, even in comparatively advanced civilisations,
is a ' civil ' rather than a ' criminal ' offence — ^a matter for
damages and compensation rather than for exemplary punish-
ment. Thus Glotz 132 says : ' L'intention n'est rien : le fait
est tout. Pas de circonstances attenuantes. Nulle difference
entre I'assassinat lachement premedite et I'homicide involon-
taire.' To the possible objection that the distinction is found
in Greek legends, as given by Aeschylus, Apollodorus, Pausanias
and others, he rephes that these legends are of late origin —

"8 Eurmnides, pp. 104-5. "» See infra, pp. lllff., 139£E.

"• We should perhaps also add the ' reminiscence ' in II. is. 63, where
the lover of domestic strife is said to be a lawless wretch without home or
phratry. It is possible but not necessary to suppose that the wretch in
question was outlawed because of homicidal tendencies which continued to
manifest themselves afterwards. See Leaf, H. and H. p. 251. For a
possible reference in the phrase arlfuriTos fieTavd<Tri)s (II. ix. 648), see Ridge-
way, J.H.S. vol. vi.

"^ Caillemer, art. tp6vos in Daremberg and Saglio, p. 439; Philippi, Areopag
und Epheten, pp. 3-4 ; Eichhoff, Blutrache, chap. i. p. 8. ^" P. 48.

THE PELASGIAN SYSTEM 53

a view which is not quite consistent with his usual attitude.^^^
He thinks that those legends were invented by the Athenians
to restore the history of the Areopagus, the Palladium, and the
Delphinium courts.^^^ He attributes the moral distinction,
which these courts are assumed to imply, between voluntary
and involuntary homicide to a period ' not much anterior to
Dracon,' but he admits that the idea was being developed
before that time in ' family law ' — that is, in clan justice.
He seems to us rather inconsistent in holding that ' dans les
lois sur I'homicide (de Dracon) apparait pour la premiere
fois la distinction du meurtre premedite et du meurtre in-
volontaire,' and in maintaining at the same time that it was a
' principe lentement elabore dans la justice sociale.'^^^ The
distinction was developed, he thinks, not from any philanthropic
motives but only because private vengeance was abohshed
and the newly established power of the State sought thereby
to restrain the taste for blood. Now we may admit, with
Glotz,!^^ that the distinction is a late development in most
races whose social customs are known to us — -for instance,
amongst the Germans, the Slavs, the Celts, the Scandinavians,
and the Ossetes. France does not seem to have recognised
the distinction in its written laws before a.d. 819. In feudal
England it does not make its appearance before the time of
Henry VIII.^' But Seebohm^^^ shows that in the Lex
Wisigothorum (about a.d. 650) ' a homicide committed un-
knowingly (nesciens) is declared to be ... no cause of death.
" Let the man who has committed it depart secure." ' The
introduction of Roman law may have caused this innovation,
for Roman law admitted the distinction from the time of the
Twelve Tables ^'^ onwards, and this code was still operative
amongst GalHc peoples when they were conquered by the
Wisigoths.i^ From Beotvulf, however, Seebohm^^^ infers
that in Scandinavia within the clan * accidental homicide does
not seem to be followed even by exile.' The poem says ^^^ :
' Hsethcyn by arrow from hornbow brought him (Hercbeald)
down, his near kinsman. He missed the target and shot his

1" Glotz, op. cil. pp. 164-173.

"* p. 48. "* P. 302. "• P. 48.

i»^ Encycl. Laws Emjland, ed. Renton, vol. ix. p. 32. "• P. 128.

^" CJ. the phrase si lelumfugit mcuiis quam iccit. "" Seebohiii, p. 126.

"1 P. 71. "* Quoted by Seobohm, op. cil. p. 03.

54 POINE IN HOMER

brother. One brother killed the other with bloody dart. That
was a wrong past compensation. . . . Any way and every way
it was inevitable that the Etheling must quit life unavenged.'
In this case, of course, there could be no question of wergeld.

In the ' Canones Walhci ' ^^ (Celtic laws of the period
A.D. 700-800), which are based on the tribal wergeld system
as adopted by the Church, we find this clause ; * Si quis homi-
cidium ex intentione commiserit, ancillas iii et servos iii
reddat.' This implies a different penalty when murder was
not ex intentione.

The Brehon laws i** contain minute distinctions of payment
in different cases of wounding. If a bishop's blood was shed
in certain quantities, the guilty person had to be hanged or
to pay seven cumhals (slaves) — or their equivalent in silver
and gold : if a less quantity of blood was shed, the aggressor
was condemned to lose his hand. If the blood of a priest was
shed in certain quantities, the criminal's hand was cut off or
seven ancillae paid, if the act was intentional ; if it was not
intentional, one ancilla sufficed for compensation. It is clear
then that this distinction is not always absent even in a
wergeld system where the crime of bloodshed is particularly
objective. We have seen ^^^ that wergeld often carried
with it an ' honour-price,' an atonement for the insult, which
was caused by homicide. This price, it seems to us, could
easily admit of a modification of the penalty. Moreover, it is
possible that wergeld is not always to be regarded as a
measure of the loss sustained by a clan, but as also to some
extent a ransom of the prisoner's life. ' Partout,' says Glotz,i*^
* la composition varie selon le rang de la victime : et selon le
rang du coupable : elle est a la fois la ran9on du meurtrier et
le prix du sang verse.' For the Germans, according to
Coulanges,!*'^ ' la composition est un rachat, non pas rachat
de la victime mais rachat de la vie du coupable.' i*^ Is it not
natural to suppose that a system of compensation for homicide
which contains such minute differentiations would leave the
road open for a discrimination as to degrees of guilt ?

1" Seebohm, op. cit. pp. 106-8. "* Seebohm, op. cit. p. 103.

"5 Supra, p. 7. i« P. 107.

^*' See La Monarchie franque, pp. 473-4 (Glotz, p. 107).
^** For the contrary view of Dareste in regard to Aryan races, see his
Stvdea d'histoire du droit, pp. 252-275. Glotz, p. 106.

THE PELASGIAN SYSTEM 55

It is time to ask whether Homer has anything to say of
this distinction. We will admit that he says nothing which is
directly relevant to the question. But we will examine two
passages with a view to showing that the distinction was known
outside the Achaean caste.

The first passage is from the Odyssey i*^ and is concerned
with King Oedipus the parricide and with his pimishment.
Odysseus narrates how, in Hades, he saw Epicaste, and how
' he that had slain his father wedded her and straightway the
gods made known these things to men. Yet he abode in pain
in pleasant Thebes, ruling the Cadmeans, by reason of the
baneful devices of the gods. She indeed went down to
Hades . . . but for him she left behind many a woe, such as
the Erinnyes of a mother bring to pass.' Of all forms of
homicide, that by which a son deprived a parent of life was
regarded as the most horrible. Probably even the Achaeans,
as we shall see presently, felt a certain horror at the thought of
parricide. Homer, then, cannot understand why the gods,
who had taken the trouble of revealing the crimes of Oedipus,
nevertheless permitted, if they did not encourage, his continued
rule over the Cadmeans. All other parricides of whom Homer
had ever heard had taken to flight ! And what was the pain
which Oedipus endured ? Was it remorse of conscience ? Or
was it his self-inflicted blindness ? Euripides i^" tells how the
sons of Oedipus confined their father under bolts and hid him
away that his sad fate might be forgotten. We shall see,
later, when we analyse the Oedipodean legends as given by the
Attic dramatists, how Oedipus is filled with natural grief, but is
free from that sense of moral guilt which we should expect him
to have felt. He constantly pleads that he did not know that
the man whom he slew was Laius, his father. Was this plea
invented in later years, or was it part of the original legend ?
Seebohm i^i has told us that in primitive clan societies ' acci-
dental homicide within the kindred does not seem to be
followed even by exile.' Was it, then, because of ' accidental '
or involuntary 1^2 parricide that Oedipus continued to rule over
the Cadmeans ? Oedipus was not an Achaean. I\Iinoan or
Cadmean, which was he ? It docs not matter, for our purpose,

"» xi. 271 ff. 180 Pknenissae, GO IT.

"^ P. 71. i« Ivfra, pp. 171, 310 ff.

56 POINE IN HOMER

if he obeyed the ' dooms ' of private vengeance in tribal society.
Homer is equally vague about the working of the mother's
curse. Why did Epicaste curse Oedipus ? The Attic dramatists
do not mention this. Oedipus is cursed in Homer for one reason,
and, as we think, for one reason only. It is because other
slayers of kinsmen who did not suffer punishment were usually
cursed. Thus Meleager, who in a quarrel slew his uncle, was
"cursed by his mother Althaea.^^^ It is an Homeric maxim
that the Erinnyes command men to honour their parents.^^*
The second passage which we shall cite is from the Iliad,^^^
a passage in which the ghost of Patroclus tells Achilles how his
father Menoitius brought him away from home to the realm
of Peleus on the day when he slew the son of Amphidamas,
though he was but a boy and did not intend it, and was angry
over dice.i^^ As this is the only passage in Homer which
contains an explicit reference to involuntary homicide, and
as the slayer is compelled to flee for ever precisely as if the act
had been wilful murder, this passage has been quoted i^' as
a proof that in early Greece there was no distinction made
between murder and manslaughter. If, however, we are
right in our discrimination between the Pelasgian and the
Achaean attitudes to homicide, it would almost seem as if the
passage could be regarded, not indeed as a proof, but perhaps
as an indication, of the existence of this distinction in Homeric
Greece. May we not suppose that the words of Patroclus are
not an expression of subjective irmocence by a member of a
caste which regarded only objective facts, but a ' reminiscence '
of a higher ethical code which obtained in the tribal villages
around the fortress, and which had enshrined itself in the lan-
guage which the Achaeans learned from the Pelasgians ? In
the words of Patroclus we think we can find an echo of a distinc-
tion which, in later times, is made the basis of grades of penalties
in certain laws of homicide. Plato, whose penal code is pro-
bably modelled on the unwritten laws of tribal institutions,
points out that a person who slays another in a passion but with
intent to kill shall be exiled for a period of three years, while

"3 II ix. 563-570.

1'* Cf. II. XV. 204 olard' a>s irpf(r^vTepoi(rty 'Epippves aleu eirovrai.

1** xxiii. 88 ff. ^^' vfiTTios, ovk iOeXaiv, a.fxepi' a(TTpayd\oi(ri x"^*^^**-

1*' See, e.g., Eichhoff, Blutrache, chap. i. p. 8.

THE PELASGIAN SYSTEM 57

a person who slays in a passion without intent to kill is punished
by exile for two years. He adds that * it is difficult to give
laws on such matters with accuracy ... Of all these matters,
therefore, let the guardians of the laws have cognisance . . .
and let the exiles acquiesce in the decisions of such magistrates.'
We cannot, of course, ignore the main fact given by Homer
that Patroclus was compelled to flee from death because of
involuntary or quasi-involuntary homicide. But Patroclus
was an Achaean and we do not associate with the Achaeans
any tendency to discriminate between degrees of guilt. The
Achaean system of military control within a small dominant
caste was merely capable of preventing indefinite retaliations.
It was not interested in homicide as an offence against the
stabihty of social organisations. It had no homicide tribunals,
no elaborate code of penalties. We could not expect it to
manifest any subtle power of delicate discrimination. It is
possible that the mihtary system of historical Sparta was
equally crude in its conceptions of homicide-guilt as it was,
apparently, equally severe in its punishment. ^^^

We shall see, later,i^^ when we analyse the laws of Plato'3
homicide-code and of the ancient Hebrew code that the dis-
tinction between voluntary and involuntary slaying was much
more likely to have arisen in the tribal customs of village-
communities accustomed to the most minute differentiations
in their wergeld system than in systems emanating from
centralised political or religious authority. The Homeric
poems give us, it is true, no rehable evidence which would
help us to arrive at a definite decision on the existence of such
a distinction in early Greece, but from the passages we have
cited we may at least extract a suggestion that the distinction
was really appreciated, and we have suggested a source from
which that sentiment may very easily have sprung.

Justifiable and Unjustifiable Homicide

We come now to a kindred problem, namely, the question
whether the Pelasgians i^° were aware of a difference be-
tween justifiable and non-justifiable slaying ? Most writers

^*' See Xenophon, Anab. iv. 8. 25.

"» Sec infra, pp. 140f., 197. »•» For Attic legislation, see infra, p. 213 ff.

58 POINE IN HOMER

will admit that there was no vengeance set in motion by
death on the field of battle. It was a recognised challenge
of strength, an ci'yoiv, the issue of which was accepted as the
will of the gods. But in local blood-vengeance, arising, let
us suppose, out of failure to pay wergeld, or when the
murderer's clan defended him at home or did not expel him and
feud followed, was there no distinction between murder and
just revenge ? Glotz, as we should expect, holds that there
was no distinction between murder and revenge.^^^ ' Coupable
ou non coupable, il est responsable. Qui a verse du sang
doit du sang.' It is thus, certainly, with modern Montenegrins,
Albanians and others. But are the creators of Mycenaean
civihsation to be compared with these ? Glotz conceives the
blood-vengeance of early Greece to be what we have called
unrestricted vendetta, but this mode of vengeance is not
usually associated with settled tribal communities who are
otherwise known to accept wergeld, and we maintain that
the Pelasgians had reached this stage at the dawn of Greek
history. Glotz bases his view for the most part ^^^ on those
numerous ' flights ' of murderers which Homer records. Now,
these references concern murderers, not avengers of murder ;
and there is no instance, in Homer, of an avenger of blood
becoming ini turn the object of vengeance. The non-Homeric
instances cited by Glotz,i^^ such as the trial of Ares for the
murder of Halirrhothius, who had dishonoured his daughter ;
the flight of Hyettos from Argos to Orchomenus, after slaying
Molouros, who was caught in adultery with his wife, are derived
from Pausanias, Apollodorus, or Euripides, and are therefore
irrelevant for the interpretation of the Homeric age.

We admit, with Glotz, that in cases of adultery and
seduction slaying was unjustifiable in Homer which would
have been justifiable in historical Greece. Glotz ^^^ points
out that the system of compensation for adultery and seduction
which is found in the laws of Gortyn recalls, in a certain manner,
the custom applied by Hephaestus to Ares in the Odyssey.^^^
He says of this system : ' Nous y retrouvons aussi, exprimees
avec precision, quelques-unes des regies que les coutumes ont
transmises aux legislations ^^^ . . . Bntre la -Trotv^ de Gortyne

1" p. 50. "* P. 51"; see infra, ch, iii. ^^^ p. 50.

"* P. 383. "» viii. 318, 332. "« Op. cit. p. 385.

THE PELASGIAN SYSTEM 59

et celle de la fin des temps Homeriques la ressemblance est
frappante.' ^^'^ This is as much as to say that ' towards the
close of the Homeric epoch ' custom (or, as we should say, tribal
unwritten law) compelled the husband of an adulterous wife
to accept, in certain cases, compensation from the paramour,
and to arrest, but not to slay him. In the Odyssey}^^
Hephaestus, having surprised Ares in the arms of his wife,
decides to imprison them, saying ' the snare and the bond will
hold them till her sire give back to me the gifts of wooing.'
The other gods, among whom ' laughter unquenchable arose,'
say that 'Ares owes the adulterer's fine ' {yboi-ya^pC 6<peX\ei).
In the Iliad ^^^ the wife of Proetus falsely accused Bellerophon
of attempted adultery,^'" and begged her husband to slay the
offender. But Homer tells us that Troetus feared to slay
hiim7 and sent him forth to Lycia with the famous a-Tj/xara
Xvypd — a written injunction to the King of Lycia to put
Bellerophon to death — an act which suggests that the death
penalty for adultery was not customary in Greece.^'^ And
surely the existence of a prescribed fiocxaypi'Ci suggests that
even amongst the Achaeans the slaying of an adulterer was
unjustifiable. We may further infer that amongst the
Pelasgians there existed some authority, whether tribal
tradition, or clan-custom, which discriminated between the
cases in which death could and those in which it could not be
inflicted with impunity. The collective execution of death
in case of refusal to obey clan-laws regarding the payment
of wergeld, or /moixaypia, is a clear manifestation of that
social justice which claims the right to decide between justifi-
able and unjustifiable slaying.

AVe cannot, of course, find any evidence in the Homeric
poems for a tabulation of instances of justifiable homicide
such as is found in the laws of Dracon.^'^ But the Homeric
poems present us with a picture which is mainly, if not ex-
clusively, Achaean, and we cannot infer from the absence of
Homeric evidence that the Pelasgian tribes which had de-

1" P. 386. "s viii. 318 ff. *•» vi. 100 ff.

*'" For an interesting parallel cf. Euripides, Ilippolytus.

^'^ The subsequent solitary wandering of Bellerophon in 'the plain of
wandering,' and the death of his son and daughter through the anger of the gode,
is not presented by Homer as a iiunishment for an act of adultery of which he
was not guilty (200 II.). "* Injra, pp. 193, 215 fl.

60 POINE IN HOMER

veloped, as we think,!''^ a capacity for discriminating between
degrees of homicide guilt, had not also evolved a definite
conception of the distinction between just and unjust slaying.
We shall see ^'^^ later that even the Achaeans recognised at
least a distinction between murder and just revenge. Thus,
the Achaean Orestes who slew his mother to avenge his father
is said by Homer to have ' gained renown amongst all men.' ^'^^
In the Odyssey}'^^ Amphinomus, one of the suitors, refuses to
join a conspiracy to murder Telemachus without consulting
the gods : ' I for one would not choose to kill Telemachus :
it is a fearful thing to slay one of the stock of kings : nay,
first let us seek the counsel of the gods, and if the oracles
{Oe/jLtare^) of great Zeus approve, myself I will slay him and
bid all the rest to aid ; but if the gods are disposed to avert it,
I bid you, too, refrain.' The 6e/jica-Te<i here attributed to Zeus
must be regarded as a reflex of the public opinion of the
Achaean caste, which, therefore, had evolved a distinction
between just and unjust slaying. In another place i"
Eupeithes, the father of a slain suitor, says ' It is a scorn if we
avenge not ourselves on the slayers of our sons and brothers ;
rather would I die ! ' It is obvious that an act which is a
duty prescribed by caste or law or custom cannot be regarded
as a crime. So,^'® when the feud arose between Odysseus,
who regarded himself as justified in slaying the suitors who had
insulted his family, and the suitors, who were contriving what
they considered a just revenge. Homer tells us that Odysseus
would have slain them all, had not Athene intervened and
ordered both sides to desist and to enter into a solemn covenant
of reconciliation. This act of Athene ^'^^ signifies that in her
opinion both sides are justified in shedding blood, and hence
that the feud can be cancelled without disturbing the balance
of justice. Now Glotz i^° rightly points out that the ancients
attributed to their gods such opinions as they themselves
professed ; and if Achaeanised Athene acted thus, how can
we avoid assuming the existence of at least as high a standard
amongst the Pelasgians ? In Homer then we may conclude
that there existed some distinction between just and unjust

1" Supra, p. 55 ff. "* Infra, p. 76. i" od. i. 298 fit.

"« xvi. 400 ff. 1" Od. xxiv. 420. "» lb. 530-555.

"» See also Od. i. 290 ff. "» P. 565.

THE PELASGIAN SYSTEM 61

slaying. For Glotz, this distinction arises only when the State
takes justice into its own hands and legitimatises private
vengeance after trial. The date of this evolution, he thinks,
is the age of Dracon. But we maintain that, long before
Dracon, or perhaps even before Homer, there existed, in
Greece, States within States, that is, clans and tribes and
phratries, whose interest it was, at the dawn of civilised society,
to create the distinction between justifiable and unjustifiable
bloodshed, which is so vital to domestic peace.

Collectivity in Vengeance

Nothing that has been said in this chapter is incompatible
with the view that punishment, in early societies, tends to be
collective and hereditary. Feuds of blood must have occasion-
ally occurred amongst the early Pelasgian folk, but we cannot
ignore the control of tribal authority, and the Achaean domina-
tion which may have acted as a check. However, it is one
thing to declare war on a group which refuses to fulfil the law
of a district or of a tribe ; it is quite another thing to refuse
the ' satisfaction ' prescribed by custom, and to make a single
murder an invariable cause of incessant bloodshed. This is
the state of Homeric society as conceived by Glotz, and by
most writers on the subject of early Greek homicide. We prefer
to emphasise the triumph of reason over passion which is
symbohsed by a wergeld system of local vengeance, by the
worship of common ancestors, real or fictitious, by the early
political synoekism of many Greek districts, and by inter-
national Amphictyonies of immemorial antiquity. We think
that it was in post-Homeric times, when the Achaean control
was removed, and the Migrations broke up the sohdarity of
Pelasgian clans, that Greek societies developed unrestricted
vendetta. Glotz ^^i has difficulties about the Homeric age.
He has to admit that there is no infalhble system of
collective punishment in Homer. ' Dans I'lliade et dans
rOdyssee,' he says, * les querolles strictement personnellcs no
lient plus infailliblement au sort de I'offensour tous lea siens.
On n'y voit point, apres un meurtre efi(f)vXio<i, les vengours du
sang poursuivre la famille du meurtrier.' The difficulty is

"1 P. 191.

62 POINE IN HOMER

obviated by our theory of Achaean restricted vendetta. The
vengeance of Achilles^^^ for the death of Patroclus is no objection
to our theory, as it is not revenge for homicide proper : war
is distinct from peace. Achaean kings confiscate property,
transfer and destroy whole cities ^^^ : this is but the autocracy
of a quasi-feudal militarism ; it is not a punishment of moral
guilt.

Euripides ^^* makes Tyndareus utter a sentiment regarding
the legitimate modes of homicide-vengeance which seems to
us to be very applicable to early Greek societies. Tyndareus
objects to the infliction of death as a penalty for the slaying
of Agamemnon, on the ground that such penalties, in the
absence of State-control, would inevitably lead to an indefinite
series of retaliations. ' Eight well,' he says, ' did our ancestors
in olden times enact these ordinances . . . they punished (the
murderer) with exile, but they suffered no one to slay him in
return, for (in that eventuality) each successive avenger would
be liable for bloodshed. ... I will support the law, and try
to check this brutal murderous practice destructive alike of
individual States and of the world.' We shall see later ^^^
that Euripides is either consciously archaising in this passage
or that the view of Tyndareus was somehow preserved in the
legend which the dramatist follows. In either case, it seems
to us to contain a valuable principle regarding the fear of
unrestricted vendetta, of collective and hereditary punishment,
which is found in civilised tribal societies in a condition of
private vengeance. Such societies have either to abandon
civilisation, and to fall back into a chronic state of chaotic
barbarism, or to adopt a system of ' social justice ' which, by
definite rules and regulations, expressive of tribal authority,
by public opinion and religious sanctions, prevents, as far as
possible, the innocent from suffering with the guilty.

The penalty of wergeld was, in a certain sense, collective
because it was diffused throughout the kindred. But this
penalty is clearly far removed from the collective punishment
of a barbarous hypervengeance. It arises, we have said, from
the simple fact that property, in early society, was to a great
extent collective or common ; and also from the fact that the

i»« II. xviii. 336, xxiii. 181. i" Supra, p. 19.

"* Orestes, 500. "« hifra, p. 348 ff.

THE PELASGIAN SYSTEM 63

individual of tribal life was not the isolated personality
which feudal and modern civilisations have evolved, but was
rather a branch of one great wide-spreading tree in which he
lived and moved and had his being. Finally, in regard to the
Homeric society, we must remember that the Achaeans stood
on quite a separate plane. Amongst them there is little or no
suggestion of collective punishment. Achaean military discip-
line prevented it. Such traces of this punishment as are found
in many later legends must be attributed, as we shall see,
to post-Homeric influences.

CHAPTER III

THE ACHAEAN SYSTEM

Achaean system explained according to author's theory : proofs from Homeric
text : question of discrimination, amongst Achaeans, between murder
and manslaughter, and between justifiable and unjustifiable homicide :
no collectivity or solidarity in vengeance.

* The Achaians,' says Leaf,^ ' shew no signs in Homer of
anything corresponding to the minor classifications, so impor-
tant in later Greece, which is recalled to us by the Attic names
of 76^09 and (fyparpla. They appear as a single unit divided
only locally. The whole primitive family system, with its
rites and taboos, has disappeared and the only kinship recog-
nised as carrying a moral obligation is the natural obligation
of close blood relationship . . , this is only what we should
expect in a people of military adventurers. . . . Homicide is a
local and family affair.'

We have indicated the confusion of ideas which characterises
the traditional views regarding Homeric homicide,^ a con-
fusion which is to be attributed to the failure of writers to dis-
criminate between the Achaeans and the Pelasgians, between
the individualistic quasi-feudal militarism of a dominant caste
and the complex tribal organisations of a settled agricultural
subject-people. We have suggested, as the most probable hypo-
thesis, that the Pelasgian penalty for homicide was normally
and essentially wergeld, except in cases of kin-slaying, for
which the penalty was exile : we have argued that, within the
Pelasgian tribe, or phratry, or village community, exile from
his clan or phratry or State was accepted for the slayer as a
complete or partial substitute for his wergeld debt : and
that if the murderer in default of wergeld remained in his
native place beyond a certain time, he could be killed with
impunity, having been previously warned or threatened ;

1 H. and H. pp. 251-253. » Supra, chap. ii. pp. 21-6.

THE ACHAEAN SYSTEM 65

we have said that bondage or servitude might be accepted in
case of failure to pay the prescribed wergeld quota — whether
on the part of the murderer himself or on the part of delinquent
relatives — a bondage which was not necessarily perpetual, but
was rather a temporary punishment proportioned to the ' debt.'
The Achaean system, we have suggested,^ was fundamentally
different : it was a restricted ' small family ' vendetta, in which
blood for blood was the normal retribution, wergeld was
unknown, and exile was merely a flight from death.

This view must now be defended from the text of Homer.
In the Odyssey * we read that there came as a suppliant to Tele-
machus,at Pylos, a murderer from Argos, named Theoclymenus.
He was a great-grandson of Melampus who was a contem-
porary of Nestor, and the family had been settled in Argos for
four generations.^ That the family was Achaean is rendered
obvious by the Homeric text.^ That the victim was probably
a kinsman of the murderer appears from the words avBpa
efi(f)v\ovJ We pointed out, in the Introduction,^ how easily
relatives could have accumulated in one or two hundred years,
without, hcfwever, attaining to the reahty, whatever may be
said about the appearance, of a clan. But the important
point to note is that, even in exile, Theoclymenus feared the
death which was desired by those who were at once akin to him
and to his victim. ' I have fled,' he says, ' from my country,
for the manslaying of one of mine own kin ; and many brothers
and kinsmen of the slain are in Argos . . . and rule mightily
over the Achaeans. Wherefore now am I an exile to shun death
and the black fate at their hands. . . . Set me on board ship
since I supplicate thee in my flight, lest they slay me utterly :
for methinks they follow hard after me.' * Nothing could be
farther removed than this from the recognised exile penalty of
the wergeld system. The passage shows, moreover, that the
suppUcation was not an appeal for homicide-purgation, as
Miiller would maintain i" — we shall see later that this ceremonial
was post-Homeric — but was merely an appeal for protection
from the avengers of blood.

A similar supplication is mentioned in a passage in the

3 Supra, p. 27. « xv. 224, 273-278. » Supra, p. 21.

• fxfya Sf KpuTfoviriv 'Axaiwi/. ' 273. * Supra, p. 21.

• From the trauslatiou by Butcher and Lung. " See Eumenides, p. 109.

66 POINE IN HOMER

IliadP^ in which we read that * Epeigeus, who ruled fair-set
Boudeion of old, when he had slain a good man of his kin, came
as suppliant to Peleus and silver-footed Thetis . . . and they
sent him to follow with Achilles.' The locality of Boudeion
is unknown.! 2 While we cannot argue that Epeigeus was an
Achaean from the fact that he is included amongst the Myrmi-
dons (after his adoption by Peleus), still we may presume that
he was an Achaean from the behaviour of Peleus and hence we
may interpret his exile as a flight from death. We may there-
fore infer that death was the Achaean penalty for kin-slaying.
This passage also illustrates the statement of Leaf^^ that
homicide, among Achaeans, brings no disability other than exile
from home. To an ambitious young man ' exile under such
circumstances is no punishment : a wealthy and generous king
can give opportunities of advancement beyond all the hopes of
a narrow family circle.' Epeigeus, as Homer tells us,i* was
slain by Hector in battle before the walls of Troy. His enrol-
ment among the Myrmidons saved him from the hands of the
avengers of blood.

In another passage of the Iliad ^^ we are told that Medon,
son of Oileus and brother of Ajax, ' dwelt in Phylace, far from
his own country, for that he had slain a man, the brother of his
stepmother Eriopis.' The murder probably took place in Opus,
a Locrian town, where also was perpetrated the death of the son
of Amphidamas at the hands of Patroclus.^^ Like Patroclus,
Medon came to Phthia, not to Peleus the king of the realm,
but only, as Leaf would maintain,^' to Protesilaus, a ' baron '
of Achilles who ruled the town of Phylace. The typically
Achaean method of procedure is maintained.

Again, we are told ^^ that Lycophron, son of Mastor, of
Cythera, slew a man in Cythera and came and dwelt with Ajax
who made him his ' squire ' or a member of his bodyguard.
He, too, was slain in Troy, and when he falls Ajax says to his
brother Teucer, ' Our faithful comrade has fallen . . . whom
we honoured like our parents.' Leaf ^^ quotes this passage as
an instance of the immunity of Achaeans from any real punish-

" xvi. 511. 12 Leaf, H. and H. p. 254. " P. 253.

" II. xvi. 570. " xiii. 696 ; xv. 336.

i« II. xxui. 88. " Op. cit. pp. 125, 128, 135, 254.

" II. XV. 430 ff. " H. and H. pp. 254-5.

THE ACHAEAN SYSTEM 67

ment for bloodshed. So far as tribal customs were concerned
such men were entirely above the law.

In the Odyssey, ^^ Eumaeus, swineherd of Odysseus, tells
how a beggar appealed to him for help on the ground that he
had slain a man, and that he knew Odysseus (which was a
falsehood). From the poverty of the beggar it is not necessary
to infer that he was a Pelasgian who had ' wandered over a
vast tract of land.'

Again, Odysseus,^ inventing a fiction about his past,
pretends that he is a murder-refugee from Crete (an Achaean
dominion), having killed the son of Idomeneus. ' I smote him,'
he says, ' with a bronze-shod spear as he came home from the
field, lying in ambush for him by the wayside, with one of my
companions.' He adds, very significantly, as we think : ' and
now I have come hither with these my goods ; and I left as
much again to my children.' There is no trace here of that
solidarity in the control of property, and of that ' passive collec-
tivity ' or distribution of punishment, which is so characteristic
of clan wergeld. No tribal murderer could have taken any
property away with him : his property, and therefore probably^^
that of his children, was distributed among the wider kindred
who either retained it or used it to defray their share of the
wergeld.23 Odysseus, however, departs with half his pro-
perty, and the relatives of the slain Orsilochus left the children
in tranquil enjoyment of the rest ! Of course, Odj^sseus did
not really live through such an experience, but a ' tribesman '
would have told a very different story.

Again, there is the story of Phoenix,^'* which opens up the
question of parricide. Phoenix did not kill his father, but it
occurred to him to do so, because his father cursed him with
sterility, for having had amorous relations with one of his
father's concubines. Fearing to commit the dread deed of
parricide, he decided to leave his home. His relatives and
comrades endeavoured to dissuade him, holding a feast in his
house for nine days, but on the tenth he fled. He went from
Hellas to Phthia, to King Peleus, who made him king over the
Dolopians. A portion of this passage ^'^ has been considered

2" xiv. 380. " Od. xiii. 258. " Sco Sccbohm, pp. 129-130.

^ ''* See supra, p. 9; Seobohm, pp. 109, 350.

* " //. ix. 450-480. " 458-lGl.

68 POINE IN HOMER

spurious by many editors, as it is not found in any Homeric
manuscript, and Aristarchus is said by Plutarch to have
omitted it, as being unsuitable to the character of Phoenix ^^ ;
Glotz 2^ holds that the feast in question was a kind of gathering
of the clan. The father, he thinks, wished to banish the son,
but could not do so without the solemn and formal ratifica-
tion of the assembled clan. He says of Amyntor,^^ the father
of Phoenix : ' Comme Thesee, il a maudit son fils : s'il ne le
bannit pas, comme Thesee, c'est qu'il a besoin d'obtenir le
consentement du 76^09.' Now Euripides ^^ in describing the
curse which Theseus pronounced against his son, Hippolytus,
whom he believed to be the real though not the actual cause
of the death of his wife Phaedra the step-mother of Hippoly-
tus, tells us also that Theseus commanded Hippolytus to
depart from Troizen and forbade him ever to reside at Athens.^"
This sentence was pronounced without any consultation with
the clans of tribal Attica, because Theseus, in the legends, is
erroneously presented as an autocratic ruler, Uke Peisistratus,
rather than as a tribal chieftain. But Amyntor was an
Achaean, and we have argued that the Achaeans did not acknow-
ledge or recognise clan-jurisdiction. Hence, a comparison of
Amyntor with the legendary Theseus is logically valid but
does not justify Glotz's conclusions. Moreover, if it had been
the desire of Amyntor to secure a formal decree from the
clan for the expulsion of his son, why should the ' clan ' have
guarded Phoenix as if he were a prisoner ? Surely it would
have been sufiQcient to obtain a decree of banishment after the
offender had fled. On this point, Glotz does not seem quite
clear. ' Sans doute,' he says, ' tous ses parents montent la
garde autour de Phoenix de peur qu'il ne s'echappe. Mais
ce n'est pas pour cela qu'ils sont venus. lis sont venus sur
convocation.' But we can find no suggestion, in Homer, that
the kinsmen were summoned by Amyntor to agree to a
sentence of banishment for his son. We are told quite plainly
that Amyntor and his son were exceedingly angry with each
other, so much so that Phoenix contemplated parricide, and
would have killed his father had not some of the immortals
reminded him of the unpleasant reputation which the act

2« See Monro's Iliad, vol. i. p. 349. " Pp. 43, 44.

" p. 44. 29 Hippolytus, 890 ff. =•» lb. 970 ff.

THE ACHAEAN SYSTEM 69

would bring him.^^ Owing to his father's curse, he looked
forward to a childless old age. He tells us that he decided
to leave his home.^^ For an Achaean such an exile involved
no serious hardship, but might, on the contrary, have brought
many advantages. His relatives came, as we think, to entreat
and restrain him.^^ They ' imprisoned ' him, or rather they
sought to prevent his escape, in the hope that the feast would
reconcile the father and the son. Can we imagine a group of
clan-kindred, with a right of inheritance to the property of
Phoenix, so very anxious to restrain him ? We fear they would
rather have celebrated his departure ! But Homer makes no
mention of clan-kindred. The eVat and the ave-^iot are the
ordinary ' comrades and cousins ' of the Achaean ' small family
circle ' : the whole context supports the hypothesis of Leaf,
of which Glotz is unaware, namely that the Achaeans of Homer
lived in an atmosphere which is foreign to the clan.

The question remains : what was the consequential penalty
which helped to deter the Achaean Phoenix, who had otherwise
little regard for his father, from actually slaying him ? We
have seen ^* that kin-slaying, and therefore parricide, was
punished by exile in the tribal system. How would it have
been punished within the Achaean caste ? We have httle
Homeric evidence to guide us here. Homicide amongst the
Achaeans is a private affair which concerns a small family
circle. In the Iliad ^^ the Trojan Akamas says that it is
desirable for a man to pray that ' some kinsman be left in his
home to avenge his fall.' If Akamas avenges the slaying of his
brother even in war, will a son not avenge the slaying of a
father ? Does not Orestes avenge the murder of his father, Aga-
memnon, even when that vengeance necessitates the shedding
of his mother's blood ? Homer implies that Clytaemnestra
was the murderer of Agamemnon and also of Cassandra ^^ : he
also imphes that she was slain by her son Orestes.^' Glotz ^^
regards such vengeance as perfectly normal : ' Loin d'etre
impossible,' he says, ' la repression des crimes commis par un
parent contre un parent est plus certaine ot plus s6vero quo la
reparation des dommages causes par uno famillo h uno autre.

31 400. 82 463. " 405.

'♦ Supra, pp. 9, 47 f. " xiv. 484. »" Od. xi. 410 2:?.

»' 0(1. iii. 310 ; infra, p. 72 ff. " P- 45.

70 POINE IN HOMER

Si I'offenseur ... est parent de la victime ses auxiliaires
naturels deviennent ses ennemis. Seul, il a centre lui I'univers.'
Hence it is probable that the erao and the aveylnoi who were so
anxious to heal the feud between Amyntor and his son ^^ would
have been equally anxious to avenge Amyntor if he had been
slain by Phoenix. They would have put the parricide to death.

The portion of the Homeric story of Phoenix which is
generally regarded as spurious *° happens to be the passage in
which parricide is referred to in a casual and frivolous manner.
Plutarch states that such a reference was considered unsuitable
to the character of Phoenix. We will go further and say that
it is unsuitable to the ancient Greek conception of parricide,
whether among the Achaeans, or, a fortiori, among the clans.
This latter point will become more evident when we discuss the
laws of Plato and the legends of the Attic tragedians. Our
theory of the Achaean penalty for homicide must now seek
further confirmation from a discussion of other Homeric
passages.

In the Iliad ^^ Phoenix tells Achilles the story of Meleager,
son of Oeneus, King of Calydon, pointing out how he refused
to fight for his people during a war between the Calydonians
and the Curetes. The cause of his refusal was his indignation
at the curse which his mother, Althaea, had launched against
him because he had slain her brother, a prince of the Curetes,
in the war. Homer, of course, does not mention the story which
later legends contain, of the fateful brand, and the death of
Meleager when the brand was burned by his mother.*^ 'q^i
from the entreaties of his father, Oeneus, of his sisters, and
even of his mother,^^ and from the presents which were offered
to him by the priests and the elders of the Aetolians,** in the
hope that he would lay aside his anger and continue to fight
for the Calydonians, we may infer that he was not regarded
in Homeric times as a kin-slayer of certain guilt. His own
anger, too, indicates what the Homeric facts would seem to
imply, that the slaying of his mother's brother was in his own
opinion justifiable as an act of war.^'

" II. ix. 465 ff. *» 458-462.

«i ix. 550 if, «2 Pausanias, x. 31. 2 ; Ovid, Met. viii. 450, 531.

" 581 ft. " 575 ff.

** The conflict between the Calydonians and the Curetes (another Aetolian
people) had arisen over the body of the famous boar.

THE ACHAEAN SYSTEM 71

When, in later times, the Eoman poet Ovid makes Althaea
say, as the Achaean avenger of a brother's death would naturally
say, mors morte jpianda est, he implies, what the Homeric story
of the ' curse ' compels us to assume, that Althaea regarded
her brother's death as culpable kin-slaying, which required
atonement. The curse of Althaea indicates her conviction
that the death of Thestius was a crime and also her inability
to avenge it at the time. But, in the general opinion, there
was a doubt about the guilt of Meleager, and Meleager was
sufficiently important to get the benefit of the doubt. There
are, then, two conclusions which may be indirectly derived
from this passage : (a) that kin-slaying, within the Achaean
caste, was regarded as a crime which merited serious punish-
ment, such as death ; and (h) that the distinction between
justifiable and unjustifiable slaying was in certain circum-
stances admitted and upheld by the Achaeans.^^

Our next quotation has reference to Tydeus, the brother
of Meleager. Homer ^'^ tells us that Tydeus left his native
Calydon, and ' roaming thence settled at Argos, (for thus did
Zeus and other gods decree,) and married there a daughter
of Adrastus.' In this connexion Leaf *^ points out that
' Homer does not tell of any actual homicide, yet the picture
he gives of the family feuds in Tydeus' time is such as to make
family bloodshed far from improbable.' From later legends ^^
we learn what Homer has not mentioned, namely, that Tydeus
was a kin-slayer. We know that Tydeus was an Achaean,
and his action in fleeing from Calydon and settling at Argos
was a typical Achaean procedure. His ' exile ' was really a
flight from death, and such a flight suggests that even in the
case of kin-slaying the Achaeans, unlike the Pelasgians, did not
accept ' exile ' as a penalty for bloodshed. Tliis has already
been demonstrated in connexion with the flight of Theocly-
menus.^° The alliance of Tydeus, by marriage, with Adrastus,
King of Argos, helped to preclude the possibility of blood-
vengeance at the hands of Calydonian avengers.

A clear and cogent illustration of the Achaean system of
avenging bloodshed is to bo found in the punishment inflicted

*« Supra, p. 58 f! ; infra, p. 70. " //. xiv. 110 (T.

" H. and II. p. 254. " Sco Smith, Did. liio<j. and Myth. a.v. Tydous.

»" Supra, p 05

72 POINE IN HOMER

by Orestes on his mother and her paramour in revenge for
the slaying of Agamemnon. It is not of course a matter of
absolute certainty that Orestes slew his mother or that she
slew her husband, in the Homeric story, but it can, we think,
be inferred with the greatest probability. Homer says ^^
that, after the Trojan war, Menelaus wandered about with his
ships * amongst men of strange speech ' for seven years : that
meanwhile ' Aegisthus planned baneful deeds at home : and
for seven years ruled over rich Mycenae, having wrought the
death of the son of Atreus, and subdued unto himself the
people : but in the eighth year goodly Orestes came back from
Athens as a retribution and slew the man guilty of his father's
blood {7raTpo(f)ovrja), Aegisthus of crafty counsel, who had
wrought his father's death. Now when he had slain him, he
held a funeral feast with the Argives for his hateful mother
and for Aegisthus powerless in defence {avdXKtSo^).' In this
rendering of the text, we have deliberately avoided translating
KTeiveiv as ' to slay,' since it can also mean ' to seek to slay ' ^^
or, which is almost equivalent, ' to plot the death of.' From
the point of view of homicide-guilt and retribution, the plotter
and the perpetrator were probably equally culpable whether
in the Homeric epoch or in historical times .^^ Hence it is
that in other passages Homer presents Clytaenmestra as the
plotter and Aegisthus as the executor. In both cases, of course,
the guilt of bloodshed is aggravated by the additional stigma
of adultery. In the Odyssey ^* Zeus tells how he warned
Aegisthus not to kill Agamemnon or to woo his wife, for
Agamemnon would be avenged by Orestes. Again,^^ we are
told that Aegisthus brought Clytaemnestra to his house — •
* a willing lover and a willing lady.' In another passage ^ we
hear of the famous scout whom Aegisthus placed in a tower,
to watch for the homecoming of Agamemnon. This scout
had been watching for the space of a year " when Agamemnon
arrived. Immediately upon his arrival, he accepted an
invitation to a feast in the house of Aegisthus, who had pre-
pared an ambush to destroy him in the event of his refusal.^

" Od. iii. 300 ff. " See Od. ix. 408. "^ Infra, p. 223 flF.

M i. 35 ff. " Od. iii. 263 ff.

^* Od. iv. 524 ff. ; c/. Ae8chylu.s, Agamemnon, 1 ff.
" 526. " Od. iv. 530 ff.

THE ACHAEAN SYSTEM 78

After the feast he was slain ' as one slayeth an ox at the stall ' ;
but not without a struggle. ' None of the " companions "
of the son of Atreus who attended him survived, nor any of
the " companions " of Aegisthus, but they were slain in the
house.' ^^ We have pointed out that Clytaemnestra was
living in this house with her paramour. The reference to the
time of the deed — ' after the feast ' — and to the manner of
the slaying — ' as one slayeth an ox ' — suggests the use of the
axe and the fatal bath of Agamemnon which has been made
so familiar by the Attic tragedians. We are definitely in-
formed ^° that Clytaemnestra was an active agent in the terrible
bloodshed which took place. The ghost of Agamemnon speak-
ing to Odysseus in Hades says : ' Aegisthus contrived my
death and doom and slew me, aided by my accursed wife . . .
most pitiful of all I heard was the voice of Cassandra, daughter
of Priam, whom, close to me, the guileful Clytaemnestra slew.
As I was dying I strove to raise my hands to avert (or grasp) ^^
the sword, but let them fall to the ground again, and that
shameless woman turned her back, nor could she bring herself,
even when I was going to the house of Hades, to close my eyes
or my mouth with her hands ! Surely there is nought more
horrible and shameless than a woman since she planned
a foul deed, and wrought the death of her wedded lord.'
Aeschylus, then, as we think, has kept very closely to the
Homeric narrative, when, in the Agamemnon, he makes
Clytaemnestra the actual slayer of her husband, and represents
Aegisthus as concerning himself only with an ambush and
a battle against the retainers of Agamemnon. Li Homer,
Aegisthus and Clytaemnestra were equally guilty. Orestes,
therefore, slays them both, and gains renown among all men.^^
In the clan-system, Aegisthus, a iirst cousin of Agamemnon,
would not have been slain, if he had gone into exile, nor
would wergeld have been payable, as ho was akin to the victim,
Clytaemnestra's kindred might have compensated the crime
by a wergeld paid to the kindred of Agamemnon. How
strange it seems that the children of Aegisthus would have

" 53U-7. " Od. xi. 409 B.

•' I take irepl (paa-ydvifi with x*'P'»* i^ftptov rather than witli i'roBy^ffKwy.
Butcher and Lang render : ' I Htrove to raiso my hands as I wa.s dying iip<>«
the Bword, but to earth they fell.' " Od. i. 288.

74 POINE IN HOMER

received a share ! In historical Athens, Aegisthus would
most probably have been put to death without the option of
exile, since he was a kin-slayer, while Clytaemnestra could have
gone into exile on the second day of the trial.^^ To the minds
of post-Homeric legend-makers it would have been necessary
for Orestes,^* if he wished to be unimpeachably correct, to
obtain authority from the war-council of the chieftains, as
Menelaus did in the case of Helen^^ ; but in Homer Orestes is
the natural avenger of a crime which would otherwise have gone
unpunished. The slaying of Aegisthus and Clytaemnestra was
not murder, but just revenge, so far as that distinction was
admitted and sanctioned by the traditions and public opinion
of the Achaean caste. If there had been any tendency to
revolt at the abhorrent nature of Orestes' act in slaying two
of his kindred — one of them the dearest of kin — this feeling
would have perished on the recollection that Aegisthus and
Clytaemnestra were not only murderers but adulterers. We
find evidence of a strong public opinion against this twofold
moral stigma in Homer. In the Odyssey,^^ for instance,
Athene urges Telemachus to slay the suitors and quotes the
act of Orestes as a parallel. The point of the comparison lies
in the suggestion of adultery which attaches to the presence
of the suitors in the home of Odysseus. * Hast thou not heard,'
says Athene, ' what renown the goodly Orestes gat him among
all men in that he slew the slayer of his father ? . . . thou,
too, my friend ... be valiant, that even men unborn will
praise thee.' But as we have elsewhere argued ^' that
adultery alone would not justify, in private vengeance, the
death of the offender, we must conclude that the justification
for Orestes' act consisted essentially in the fact that he avenged
the murder of his father. From this episode we may, then, also
conclude that the Achaeans, in certain circumstances, admitted
the distinction between justified and unjustified homicide.®^

We have now adduced sufficient evidence from the Homeric
poems to justify the theory which we have propounded as to
the nature of Achaean blood-vengeance, and to illustrate the
contrast which it is necessary to make between the attitude

«3 Infra, pp. 218, 236 ff., 239 «* See Eur. Or. 500.

«5 Euripides, Troadea, 900 ff. «M. 298 ff.

*' Supra, p. 59. •* Supra, p. 60.

THE ACHAEAN SYSTEM 75

to homicide adopted by a temporary dominant caste of a
military quasi-feudal type and that of the tribal village com-
munities in which we beHeve the Pelasgian subject-race to
have lived. It remains for us to conclude this chapter by some
brief remarks on certain questions which we have already
raised and partly answered : e.g., whether there existed, in
the Achaean caste, (a) the distinction between murder and
manslaughter, (b) the distinction between justified and un-
justified slaying, (c) the practice of collective and hereditary
vendetta.

In regard to the first question, we have argued ^^ that a
legend as old as Homer must have presented as ' involuntary '
the slaying of Laius by Oedipus. By this we mean that Oedipus
neither intended to kill the old man whom he met at the ' crossing
of the three roads,' nor was aware that the man whom he
slew was his father. If we now assume that the Achaeans
recognised no distinction between voluntary and involuntary
slaying, and that Homer lived in such an atmosphere, though
the language and the social system of the Pelasgian people
who lived around him were familiar with this distinction, we
can more easily understand the astonishment which the poet
seems to feel at the sojourn of Oedipus at Thebes after the
gods ' made known these things to men.' We can also, on this
assumption, more easily explain '° the protest which is implicit
in the words of the dead Patroclus to Achilles when he describes
his flight from death ' on the day when ' he slew the son of
Amphidamas, ' being a mere stripling and not intending
(to kill) and being angered over (a game of) dice.' If we add
to these probabihties the fact that the Achaeans were men of
a proud and haughty spirit, men of quick passions, and accus-
tomed to bloodshed, men who knew no restraint beyond that
of a temporary military disciphne, and no fear of any greater
punishment than that of expulsion from a fortress or from the
councils of a military clique, wo shall conclude that the dis-
tinction between voluntary and involuntary slaying was not
recognised by the Achaeans. Such a conclusion incidentally
explains the general view of modern scholars '^ that in tho
Homeric epoch no such distinction was admissible.

«» Supra, p. 55. ■"> Supra, p. 56.

'' E.(j. Glotz, p. 48 ; Eichhoff, Blutrache, chap. i.

76 POINE IN HOMER

In regard to the second question, concerning the distinction
between just and unjust slaying amongst the Achaeans, we
have indicated some evidence for this distinction in the pubHc
approval which greeted the vengeance of Orestes,'^ in the
sentiments of the Aetolians concerning Meleager,'^ in the
scruples felt by one of the suitors in regard to a conspiracy
against the life of Telemachus,'* in the approval given by
Eupeithes,'^ and also, apparently, by the goddess Athene,'^
to the vengeance plotted for the slaying of the suitors. A
distinction between the indiscriminate slaying of enemies
which was permitted in war and the personal vendetta which
was restricted to the person of the murderer, in peace, is
illustrated by the contrast with normal modes of vengeance
exhibited by the act of Akamas who avenged his brother's
death on Promachos, and not on Ajax, the actual slayer.'^
Pausanias" says that before the time of Theseus, and the
establishment of the Delphinium court, there was no dis-
tinction between just and unjust slaying, and that ' every
manslayer had to flee for his life.' This statement does not
altogether harmonise with our conception of Homeric Greece.
It does not take into account the control of Pelasgian tribes
and the influence of public opinion amongst the Achaeans.
His remarks are, we think, much more appropriate to the
post-Homeric period when society was in a state of disin-
tegration. Yet in regard to the Achaeans, we must point out
that their sentiments or ideals of vengeance may not always
have coincided with their acts. The arbitrariness of military
control, the presence of subjects outside the caste, the necessity
felt by the Achaeans of supporting their own side in every
dispute, make the period of their domination an epoch to which
the words of Pausanias are not entirely inapplicable.

Finally, if one asks whether the Achaeans practised a col-
lective and hereditary vendetta, we may reply that the nature
of the Achaean system of life, their consciousness of the paucity
of their numbers in the midst of potentially hostile people,
would have hindered any tendency to such a practice within
the Achaean caste. An insult inflicted from without provoked,
of course, the most savage retaliation. * Frightfulness,' no less

" Supra, p. GO. '^ Supra, p. 70. '* Supra, p. 60.

'fi Supra, p. 60. " II. xiv. 480 ff. " i. 28.

THE ACHAEAN SYSTEM 77

than military skill and strategic control, was one of the pillars
of the Achaean fabric of power. But we have seen how Athene
interfered to prevent the Achaean feud in the realm of Odysseus ;
in this role of peace-maker she may be regarded as a symbol
of the restraining influence of military discipline and group-
consciousness amongst the Achaeans. From certain passages
in Homer,'^^ in which there appears a kind of proverb, namely
that a man is lucky to have a son or brother to avenge his fall,
we may conclude that the danger of collective hypervengeance
occurring amongst the Achaeans was much less probable than
the danger of not being avenged at all. Similarly, in the
Odyssey '^ we are told that an Achaean murderer had no fear
that vengeance would fall upon his children. Thus, it is only
in post-Homeric times, we think, that the Greeks lapsed into
savagery and practised on a large scale a collective and
hereditary vendetta. This will be still more manifest when
we come to give an account of the Hesiodic society. From such
a state of chaos the Greeks were saved by the seventh-century
Apolline doctrine of pollution, which we shall describe in our
Second Book, and also by the evolution of democratic civic
government. When the State assumed responsibility for the
trial and execution of criminals, including murderers, the lust
of vengeance was gradually subdued. But all the more must
we admire the comparative absence of collective and hereditary
vendetta in the Homeric epoch, when, for Achaeans as well as
for Pelasgians, the execution of vengeance devolved upon the
relatives of the slain.

" Od. iii. 196 ; II. xiv. 480. " xiii. 268.

CHAPTER IV

JUDICIAL ASPECT OF HOMICIDE IN EAKLY GUEECE

Current views criticiBed : author's theory based on distinction between Achaean
and Polasgian societies : arguments from survivals in historical times :
moaning of SiKairiroKoi fiairiA^ty : the Trial-Scene in the Homeric iShiold
of Achilles : origin of trials for homicide.

In discussing tho trial-scono which is found in Homer's descrip-
tion of the Hhield of Achilles,^ wo were compelled incidentally
to give, in anticipation, tho main results of our inquiries as to
the existence, in Homeric Greece, of tribunals for the trial of
homicide. Previous writers on the subject, who are unaware of
tho differences in the organisation and nature of Polasgian and
Achaean societies, have naturally maintained that homicide in
early Greece was entirely a ' private ' affair and that trials
for homicide only arose when a post-Homeric conception of
murder as a * pollution ' compelled an investigation on tho
part of kings and nobles who were anxious to avert the wrath
of tho gods. Thus Bury says ^ : * This notion of manslaughter
[i.e. homicide] as a religious offence necessarily led to tho inter-
ference of tho State. For when tho member of a community
was impure, tho stain drew down the anger of the gods upon
the whole community, if the unclean were not driven out.
Hence it came about that the State undertook the conduct
of criminal justice.' Jovons ^ propounds a similar view,
though he apparently fmds moro difficulties in tho Homeric
text. ' There was, indeed,' ho says, ' no State power to which
tho relatives of the deceased could appeal for redress, much
less was there any State power which of its own motion under-
took to apprehend and punish tho murderer. But in Homeric
times a feehng was gathering that murder was an offence
against tho members of tho community in their collective

» //. xviii. 497-508 ; mipra, p. 34 ff.
» Ilistory of Greece (2nd od.), p. 172.
* Manual of Greek Antiquities*, p. 400.

JUDICIAL ASPECT 79

capacity.' Bury's general view-point is that homicide was the
only crime which called for State interference, and that there
was no such interference before the doctrine of pollution arose.
Other ' crimes,' he thinks, continued to be ' private ' affairs
until the centralisation of government brought it about that
the injured party, before punishing the offenders, had to seek
State authorisation in the form of trial, but in such cases the
State never acted on its own initiative or rcsponsibiUty,
' It must be borne in mind,' he says,^ ' that, in old days, deeds
which injured only the individual and did not touch the gods
or the State were left to the injured person to deal with as he
chose or could. The State did not interfere. Even in the
case of blood-shedding it devolved upon the kinsfolk of the
slain man to wreak punishment upon the slayer. Then, as
social order developed along with centralisation, the State took
justice partly into its own hands : and the injured man,
before he could punish the wrong-doer, was obhged to charge
him before a judge, who decided the punishment. But it
must be noted that no crime could come before a judge unless
the injured person came forward as accuser. The case of
blood-shedding was exceptional, owing to the rehgious ideas
connected with it. It was felt that the shedder of blood was
not only impure himself, but had also defiled the gods of the
community : so that, as a consequence of this theory, man-
slaughter of every form came under the class of crimes
against the rehgion of the State.' Bury does not define pre-
cisely the time at which homicide became a rehgious offence,
but from this and other references we assume that he regarded
the period as post-Homeric. Thus he says ^ : ' According to
early custom which we find reflected in Homer, murder and
manslaughter were not regarded as crimes against the State,
but concerned exclusively the family of the slain man. . . .
But gradually, as the worship of the souls of the dead and the
deities of the underworld developed, the behef gained ground
that he who shed blood was impure and needed cleansing. . . .
This notion of manslaughter as a rehgious offence necessarily
led to the interference of the State.' We admit, of course,
that there could not have been State trial before the State
came into being ; but the notion that there were no * trials '

« Op. cit. p. 145. » Op. at. p. 172.

80 POINE IN HOMER

before the days of ' State trial ' is, we think, one of the delusions
which modern minds have derived from the legacy of feudalism.
Bury admits the existence of religious courts before the period
of State courts, but he apparently forgets the courts of the
clan, of the phratry, and of the tribe.

It is frequently suggested that the right of sanctuary is
the ultimate origin of the trials and negotiations which came to
be associated with homicide. 'Among the Greeks,' says Gilbert,^

* when blood was shed, the relatives of the murdered man
usually set themselves to wreak vengeance on the murderer.
If he did not quit the country immediately, he could only
secure himself by taking refuge in a sanctuary until he had
made compensation to the relatives of his victim. From
his sanctuary, protected by the right of asylum, he could
enter into negotiations with them as to what compensation
must be paid. 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.' Now we can find no
evidence for the operation of a right of sanctuary in Homer.
Hence this theory of Gilbert would compel us to believe that
not only murder trials but even wergeld payments were of
post-Homeric origin !

Glotz,^ in a passage which we have already quoted, refuses
to see in the subjugation of blood-lust which is involved in
the acceptance of wergeld, any suggestion of the interference
of ' social justice,' whether to impose or advise a settlement,
or to fix the amount of compensation. He holds, moreover,
that in no case is exile authorised : that it is always a flight
from the natural penalty, which is death. ' L'exil,' he says,

* dans ces conditions, n'est pour le meurtrier ni une peine ni
un droit, mais une mesure de prudence ... on ne pent
obtenir I'autorisation de s'en aller tranquillement ni de revenir
jamais.' ^ It is only, he impHes,i^ when the idea of pollution
abolished the arbitrary nature of State jurisdiction that the
offended party was forced by public opinion to accept the
customary wergeld. It is only then that a person wrongly

• Gk. Const. Ant., Eng. trans., p. 379. So, Kohler, Herm. 6. 102, there
quoted.

» i.e. in Attica. » P. 115 ; supra, p. 33. » Pp. 51, 62. lo Pp. 237-8.

JUDICIAL ASPECT 81

accused could appeal to judges who must hear the case.
Thus he says : ' C'est un fait assez frequent dans rhistoire
qu'a Torigine de la legislation sociale il y ait une revolution
rehgieuse . . . mais la revolution qui en resulta fut diffuse.
EUe ne fut personifiee que par un dieu. Vers les temps ou
la Grece commence a se purifier et a demander au ciel un
supplement de justice pour la terre, elle voit sur son horizon
rayonner d'une lumiere inconnue le severe et doux guerisseur
du mal et de la souillure, Apollon. ... II exige que tout
crime soit expie et s'en prend au peuple qui manque a ce
devoir. . . . L 'expiation, il la fait consister, chaque fois qu'il
peut, a elever un sanctuaire : par la il donne aux dieux leur
part de la ttolvi] et aux juges la premiere idee de I'amende,
en meme temps qu'il multipHe les lieux d'asile et fait servir
I'homicide meme a sauver des vies humaines. . . . Tandis que
le droit reHgieux absorbait la plus grande partie de la ^e/it9
famihale pour la transmettre a la Slkt) sociale, la juridiction
de I'Etat perdait son caractere d'arbitrage. . . . Sous la pres-
sion de I'opinion publique . . . I'offense fut tenu de plus en
plus strictement d'accepter une transaction aux conditions
moderees de la coutume . . . I'offenseur qui trouvait exorbi-
tantes les exigences de I'offensee put rejeter une ai8eat<i trop
onereuse : I'innocent qui ne croyait devoir aucun dedommage-
ment put refuser le paiement d'une ttoiv^ injuste, sans craindre
la mort ou I'exil. . . . Le recours en justice, de facultatif
qu'il etait, devint obligatoire par sa frequence meme. A ce
moment, le tribunal des gerontes, sentant son pouvoir plus
ferme, franchit par un empietement fatal et naturel les limites
etroites ou sa competence etait primitivement circonscrite.
... La juridiction criminelle est creee.'

We shall see later ii how impossible it was that wergeld
could have continued to exist in days when the murderer was
polluted. We admit that the Apolline murder-code did
absorb much of the clan-customs in regard to homicide {la
difii^ familiale). But from the account which wo have given
of the wergeld system.i^ it must bo obvious how very
non-arbitrary was the jurisdiction of the clans. In our view,
the evolution of early Greek judicial authority is not a transi-
tion from a crude arbitrary local jurisdiction to an eflBcient

" Infra, Bk. II. chap. ii. " Sujtra, p. 6 ff.

82 POINE IN HOMER

central compulsory jurisdiction, but rather a gradual exten-
sion to wider areas, in accordance with increasing political
synoekism, of the judicial functions which had been previously
discharged with equal authority within smaller areas.^^ The
court of Elders, to which Homer refers in his description of
the Shield of Achilles, was, in our opinion, a city-state court.
We may call it merely a city court if we wish to retain the
word ' State ' to denote a political unit exercising authority
over a substantial territorial area, and it is in this sense that
the word ' State ' is generally used : but F. de Coulanges has
shown that the difference between the ancient ' city ' and a
' State ' was one of degree, not of kind. The ancient ' phratry '
was, he says,i* ' a small society modelled on the family.'
Maine,^^ speaking of the primitive Indian Village Community,
says : * The Community is more than a brotherhood of relatives
and more than an association of partners. It is an organised
society, and besides providing for the management of the com-
mon fund, it seldom fails to provide, by a complete staff of
functionaries, for internal government, for police, for the
administration of justice, and for the apportionment of taxes
and public duties.' So, we think, the court which Homer
describes had the highest jurisdiction in all matters of serious
dispute, whether within the city proper or in rural areas
which were politically united with the city. The elders
of the trial-scene were, we think, tribal chieftains, like the
Attic tribe-kings (^uXo/SatrtXe??), and their main function
was to arbitrate, but with full authority, in cases of dispute
between people of different clans or phratries. Inside the
clan, and probably inside the phratry (a group of neighbouring
clans), similar assemblies of interested and responsible persons
would have decided disputes between members of their associa-
tions. The only judicial change which synoekism and the
growth of State-power involved was, therefore, an extension
of the area of jurisdiction, and an increase in the number of
people who had the right, if not the duty, of referring their
disputes to a common authority. But this new central court
of justice was neither incompatible with, nor destructive of,
the more primitive local courts. Coulanges ^^ maintains that

" Seem/'"«»PP- 243 ff., 262 ff. i* Of. cit. p. 157.

" Ancient Law. p. 217. " P. 173.

JUDICIAL ASPECT 83

Plutarch and Thucydides are wrong in the assertion that
Theseus abohshed the local magistracies of Attica. Gilbert i'
admits that the Attic tribe-kings still functioned as judges
in inter-tribal disputes, in historical Athens. It is quite
possible that, in early times, there was no right of appeal
outside the tribal court for members of the same tribe. There
is a lawi^ of an Anglo-Saxon king of tribal England which
decrees : * Let no man apply to the king unless he may not
be entitled to justice within his " hundred." '

The judicial system of the Homeric epoch is complicated by
the presence of the quasi-feudal Achaeans, who sometimes hear
appeals in cases of ' petty family disputes ' among the natives,
but who, amongst themselves, obeyed the short and swift
decrees of military courts or councils of war. We have said ^^
that there is a suggestion of Achaean arbitration in the
Euripidean legend in which Hecuba appeals to Agamemnon to
justify, after . the event, her punishment of Polymestor, the
slayer of her son.^" Assuming the view of Leaf ^^ that the
Achaeans did not interfere with the ' group-system ' of the
Pelasgians, we may for the moment ignore the presence of
the Achaeans, though it is the predominance of that caste
in Homer which has misled modern scholars in their opinions
of the early Greek judicial system. We shall now examine
some interesting survivals of clan-courts in the days of Plato
and Demosthenes, so that we may realise more clearly the
nature and the functions of the local courts of the ' group
system,' courts which Homer almost ignores, which he would,
perhaps, have entirely omitted to mention, if the Pelasgian
craftsmen who fashioned the ' Shield of Achilles ' had not en-
graved upon the Shield a picture of a Pelasgian Court of
Elders, which was a familiar event in the everyday life of the
cities and tribes of the subject-race.

Historical Survivals op Clan Courts

The first instance of * survival ' which we shall cite is
mentioned by Glotz,^^ and in justice to him we must point out
that we differ from him, not in regard to the question of the

" Op. cit. p. 150. " Stubbs, Select Charters, p. 73.

»» Supra, p. 38. " Hecuba, 1135-1255.

''I U. and H. p. 258. " Op. cU. p. 42.

84 POINE IN HOMER

existence of clan-courts, but in regard to the nature of their
judicial functions in the matter of homicide. Glotz is not
aware of the distinction between the Pelasgians and the
Achaeans, or of the importance of the group system in the
Pelasgian civilisation. He admits that there existed within
the clan a regular tribunal, composed of heads of families,
who consulted and decreed, with absolute authority, on all
matters affecting property, such as adoption, inheritance,
expulsion, and marriage. He quotes Plato ^^ for a procedure
which, he presumes, was a general characteristic of the clans.
We have seen that homicide, in default of wergeld, was
commonly punished by exile or banishment. The following
is Plato's description of an expulsion from the clan : ' For him
upon whom there has come a desire, by no means fortunate,
whether just or not, to release from relationship to himself
one whom he has begotten and brought up, let it not be lawful
to do this upon slight grounds or without delay ; let him first
bring together his own relations as far as his cousins, and also
those of his son on the mother's side, and let him accuse his
son before them and prove that he deserves completely to be
expelled from the family — and let him allow his son to prove
equally that he does not deserve to suffer anything of the
kind ; and if the father can persuade and secure the votes of
more than half all the relations (father, mother, son, and
minors not voting) ,2* then let it be lawful for the father to
renounce his son : but otherwise not.' It is most important
to note here the reference to the presence of the son's maternal
relatives, for this implies an assembly of the clan or wider
kindred, not merely of the gwely or descendants of a
common living ancestor. It was this wider kindred which paid
and accepted wergeld, even though they had not all a right
of succession to family property. In the early clan system,^^
wergeld was part of the common stock which was inherited
by all the wider kindred, and therefore decrees of expulsion,
such as were pronounced, for instance, in default of wergeld
payment, were matters for the decision of the whole clan rather
than for those of the gwely or the ' family.' That such a
procedure should have survived in Plato's time, when property

*' Latos xl. 929 A-o. ^* Reading 8(rotirep h.v Sxri . . . /u^ reKtioi.

26 Supra, p. 8.

JUDICIAL ASPECT 85

had to a great extent become ' private ' in the modern sense,
and when the pohtical power of the clans had long since
vanished into thin air, shows at once the tenacity of clan
custom and the significance of Plato's account as an argument
from survivals.

Plato has another reference to a clan court, to which Glotz
has not referred and which seems to us to furnish a splendid
illustration of the manner in which minor issues, which affected
merely the members of a local kindred, remained within the
scope of clan jurisdiction even in historical Athens. We shall
see later 26 that, owing to rehgious influences, kin-slaying
became too serious a matter for the adjudication of clan
tribunals from the seventh century b.c. onwards. Even minor
cases of bloodshed such as ' wounding with intent ' had
probably, in historical times, been transferred to the juris-
diction of an Attic state court, called the Areopagus.^' The
clan court to which Plato refers, in the present instance, seems
to have had power to try and to punish the wounding of a
kinsman by a kinsman, in a passion ; it is presumed, however,
that the wound was not sufSciently grave to interfere with
military service. Plato says ^ : ' It one kinsman ^^ wounds
another ... let the heads of famihes ^° {i.e. the elders) and
the male and female kindred, as far as the cousins ^^ on the
male and female side, come together and having tried the
case deliver the offender to his natural parents to fix the fine ^^ :
and if the fixing of the fine be a matter of doubt, let the
kindred on the male side fix the fine definitely ; and if they
are unable to decide, let them eventually refer the matter
to the " guardians of the laws." ' Plato goes on to say that
where children wound their parents (presumably in a passion)
the judges must be over sixty years of age, none of them must
be a relative of the offender, and they may fix the punishment,
which may include death.

We have already hinted ^^ that the discrimination between
degrees of guilt in homicide cases, which is extremely minute
in the laws of Plato, and which is present in a cruder form in
the Draconian code, finds its ultimate origin in the old customs

" Infra, pp. 230, 236 ff. " Aristotle, Ath. Pol. 57.

** Laws, ix. ch.l5. ''» i>n6yoyos. *" Reading : ytvv'liTai.

3» avei^iuv. 3« Tiixay. " Hupra, p. 57.

86 POINE IN HOMER

of tribal life. Bearing this hypothesis in mind, we are not
surprised to discover that such matters as wounding without
intent, which is not mentioned in Dracon's code and which
therefore was not a matter for compulsory prosecution in Attic
state courts, can nevertheless be subjects for adjudication in
the courts of the clans. Of course, the * guardians of the
laws ' whom Plato mentions are technically officers of Plato's
ideal State, but the main factors in the trial are doubtless
derived from actual clan tribunals which operated in Plato's
own experience, unless the ' guardians of the laws ' are to
be interpreted as symbolical of the appellant jurisdiction of
the State. Glotz, of course, thinks ^ that at no time was kin-
bloodshed a matter for Greek State courts, but we shall see,
later, that this view is most probably incorrect. Plato insists
that the judges who condemn to death the child who is guilty
of wounding its parent must not be akin to the child. This
principle need not imply that the judges must have been
State judges. In the phratry and in the tribe one could find
many men over sixty years of age who were not akin to such
an offender. The fact that these judges in historical times
had the power of condemning an offender to death is probably
to be attributed to a survival of tribal jurisdiction in cases
where that jurisdiction had not been definitely arrogated by
the State.

A further instance of the sm-vival of clan and phratry
courts may be found in the law of Dracon ^^ which prescribed
a collective decree of ' appeasement ' in cases of involuntary
homicide. The law may be freely translated thus : * Let there
be " appeasement " if there is a father or brother or sons (of
the victim) : let all agree or let one objector hold the field ;
if there be none such, let all the kinsmen within the degree of
cousin (be appeased) if all consent to be appeased ; if there
are none of these, and the slayer slew involuntarily, let ten
phratores be appeased if all consent to be appeased.' The
procedure here prescribed applied only to involuntary homicide.
Before the ' appeasement ' a period of exile had to be com-

3* P. 322.

3* See Dareste-Reinach, I.J.G. xxi. 13-19, where taeaduv (from ea-irjm
= permit to return from exile) is found instead of alSeffa.(Tdwv apud Dem.
c. Macart. 1069 (57) ; Glotz, p. 313 ; infra, pp. 193, n. ; 205.

JUDICIAL ASPECT 87

pleted by the slayer.^^ It is not a case of accidental homicide,
which involved no punishment.^' Glotz^^ argues that the
phrase airavra'i rj tov KcoXvovra Kparelv imphes a universal
clan consent ; but it is obvious that the law is satisfied by
the consent of groups within the clan or (in default of these)
of the consent of ten phratores, who were members of the same
local religious union. The only point we wish to make here
is that in this survival of the consent of the kindred for the
abolition of a feud caused by involuntary homicide we have
all the elements which would have constituted a homicide
tribunal in days before the encroachment of State power. It
can only be a survival of a wergeld system of vengeance,
as in this system alone is there found a minute arrangement
for payment and receipt according to the different degrees
of kinship. A similar law of clan-consent governed the rights
and duties of hurial, even in the time of Demosthenes, and is
appealed to as evidence for the right of succession to property.
Demosthenes thus quotes ^^ a law of Solon : ' it shall not be
lawful for any woman under sixty years of age to enter into
the chamber of deceased or to follow the corpse when it is
carried to the tomb except those within the degree of cousins'
children.' A law of Dracon *° decreed that after bm'ial of a
murdered man ' proclamation shall be made to the homicide
in the market place by all the relatives within the degree of
cousin ; and cousins and children of cousins and sons-in-law
and fathers-in-law and phratores shall prosecute.' Here we
have a clear picture of the solidarity of the clan. The presence
of the (fipa.Tope'i, too, is significant. They were strictly outside
the clan, as each phratry included members of neighbouring
clans who were bound together by a common extra-clan
worship. In this co-operation of the ^pdrope<i we plainly see
a natural basis for discussion and negotiation in blood feuds
between different clans ; this co-operation extended also, in
certain cases, to the tribe and, after a coalition of tribes, to
the ' ancient city.' " Thus Glotz ^^ rightly says : * La famillo
fictive suit les principes de la famille naturelle ... On dirait
que le groupe a conserve, en souvenir d'une paronte primitive,

*> See iw/ro, pp. 178 £f., 187, 211 ff. " See Dem. in Aristocratem, 637.
=•8 Op. cit. p. 313. " Contra Macart. 1071. *° Ibid. 10(59.

••' See Coulanges, op. cit. p. 157 ff. *'^ Up. cit. p. 194.

88 POINE IN HOMER

en vertu d'une parent e theorique, un droit eminent sur les
biens de chacun.'

So Fustel de Coulanges points out that just as each gens ^
or clan had its own tribunal and chief, so also the phratry ^
had its own phratriarch, assemblies and tribunals. ' It was,' he
says, ' a small society modelled on the family,' and the tribe ^
had, as chief priest and judge, a tribe-king {(f>v\o^aac\€v<;),
and held assemblies whose decrees bound all tribesmen. The
nature of such tribal conventions and decrees is further
illustrated by a passage in Demosthenes, to which Coulanges
refers.*^ In a speech against Theocrines,^'^ Demosthenes
narrates how the fellow-tribesmen of Theocrines convicted
him of the embezzlement of tribal funds and punished him
by a fine ; and he was forbidden by State law to prefer any
indictments against any citizen until he had paid this fine,
as in the meantime he was regarded as a State debtor. The
decree was moved against him at a tribal meeting by a certain
Scironides and the fine proposed was seven minae.*^ From
such passages as this Coulanges *^ argues that Plutarch and
Thucydides are mistaken when they say that Theseus destroyed
the local magistracies after the synoekism of Attica. This
Demosthenic passage indicates clearly the survival of courts
whose primeval jurisdiction had been largely superseded by
that of the State.

Apart from those arguments which are based on the sur-
vivals of tribalism, it is logically probable that since homicide
in Pelasgian society was normally atoned for by the payment
of a collective wergeld penalty, which affected the property
of at least two clans, and since the judicial machinery of
Pelasgian tribes was such that it would ordinarily have been
set in motion for adjudication in disputes regarding property,
homicide was therefore a fit and proper subject for investigation
by such tribunals.

The Shield of Achilles and the Eoyal Judges

Homer, in describing the Shield of Achilles, happens to
mention a court which is appealed to in a dispute concerning
wergeld, and such a reference is as complete a confirmation

« Op. cit. p. 137. " P. 157. «6 p. 158. " P. 158.

" 1326 (Reiske). «« About £28. *» Op. cit. p. 173.

JUDICIAL ASPECT 89

of our hypothesis as can reasonably be expected.^" We have
already given what we consider to be the correct interpretation
of this passage. The Elders were Pelasgian tribal chieftains,
who frequently came together and sat upon poHshed stones,
' in a sacred circle,' holding in their hands the sceptre of
authority. It is quite probable, as Leaf ^^ suggests, that two
of the Elders acted as ' advocates,' and it is almost certain ^^
that the two talents of gold which are mentioned were a kind
of advocate's fee which was deposited by both litigants in
order to encourage the advocates to give a proper exposition
of the unwritten code of the tribes. The fact that the dispute
concerned the payment of wergeld, and not the reality of
guilt, does not warrant the conclusion that the court of Elders
could not have functioned, if it were necessary, as a murder
court. It is true that in the group system of primitive tribal
hfe there was never very much difficulty in establishing the
identity of the murderer ; but it is equally true that if an accu-
sation was challenged or disputed, there must have existed a
court whose decision would have been accepted as final : we
cannot conceive an entire clan agreeing to pay the wergeld
of 120 cows if the person who was accused of homicide had
assured his own clan court that he was innocent. Now the
Elders of the Homeric trial-scene would normally have
adjudicated in cases of homicide between the members of
different tribes ; and it is possible that they would have heard
appeals from tribal or phratry courts, in the event of dis-
agreement about inter-tribal cases. The Elders are therefore
the real StKacrTroXot /3ao-i\et9 of the Homeric society. The fact
that the Achaean kings are credited with this title in Homer does
not prove that they ever functioned as such. Leaf ^^ thinks
that they might have consented to hear appeals in isolated
instances, but the title St/cao-TroXo? is one which could frequently
have been applied without very much significance to Achaean
feudal lords who possessed a theoretical supremacy in Greek
jurisdiction. Within the Achaean caste, these lords revealed
no interest nor did they acknowledge any obligations in the
judicial aspect of homicide. On the contrary, they frequently

" Jl. xviii. 500.

*i See note on passage in edition of Iliad (1902), p. 611 ff.

" Maine, Ancient Law, p. 313 ; aujira, p. 40. " U. and 11. p. 47.

90 POINE IN HOMER

gave their daughters in marriage to murderers ! We think,
therefore, that Leaf would not now find so much difficulty in
the absence of a ' king ' in the Homeric trial-scene as he did
in 1883,^* It is not certain, of course, in what Greek areas
Pelasgian groups still retained Pelasgian kings. The Minoan
kings of Mycenae, Lacedaemon, and Thessaly, and other
districts disappeared in the Achaean conquest. Still there
survived a few Minoan or Pelasgian kings who lived in friendly
alliance with the Achaeans, and who could still be truly de-
scribed as defending ' the Zeus-given 0efiicrTe<;.' But it is
also true that at the time of the Trojan war the Achaean
lords would have come to be regarded as the ' heaven-sent
guardians of law,' through the mere fact that they were
* kings.'

Maine ^^ thinks that the ^e/itcrre? (customs) of the Homeric
age were isolated judgments delivered without any orderly
sequence or precedent. But Glotz ^^ insists that the word
66fjLL<i is pecuharly applicable to tribal custom, as opposed to
the terms BUr] and v6fji,o<i. We believe that the word generally
refers to Pelasgian traditions.

In the Iliad ^"^ we are told that Zeus is wrathful against
men who judge crookedly in the Assembly, and drive out
Justice. Who are these men ? They may, of course, be
Achaeans, but we think it more probable that they are the
judges, and therefore the chiefs, of Pelasgian tribes — ^judges
whose tribal successors were accused of corruption in the days
of Hesiod,^^ when the Achaeans were no more. In Homer two
talents of gold were offered as a reward for an advocate's
successful pleading, and the advocates were probably chosen
from the same caste as the judges. From this it is but a short
step to bribery and the corruption of justice. Hence we can
understand the words of Hesiod : ' The people pay for the
folly of their kings, who with ill thoughts wrest aside judgments,
declaring falsely. Beware of these things, ye kings, and set
straight your speech, bribe-devourers, and utterly forget
crooked judgments.' And again ^^ : ' There is the noise of the
hahng of Justice wheresoever bribe-devouring men hale her,
adjudging dooms with crooked judgments. And she foUoweth

" Supra, p. 34 ff. " Ancient Law, p. 7. 6« Glotz, p. 237.

" See //. xvi. 386-8. " j^_ and D. 260. ^9 £20 £E.; see also 40.

JUDICIAL ASPECT 91

weeping, clad in mist and fraught with doom, unto the city
and the homes of men who drive her forth.' In ancient society-
social law is inseparable from religion ; as Coulanges puts it ^^ :
' To disobey law is sacrilege.' The law was regarded as the
exclusive secret of the hereditary nobility ,^i who alone could
interpret it and whose decision was final. The opportunities
for profit-making and bribery in such a system must have been
innumerable. In later times when democracy asserts itself
the less-privileged orders,^^ championed sometimes by tribal
or quasi-feudal kings, sometimes by usurping tyrants, equipped
with mercenaries, compelled the ' Elders ' — that is, the old
patriarchal sacerdotal nobility — to codify their laws and to
admit to judicial power the ' new nobility ' of wealth and the
ignoble proletariat. The old nobiUty came then to be dis-
tinguished for the integrity of its judicial character, partly
because it had lost its monopoly of power, partly because
corruption could no longer be practised with impunity.

Origin of Homicide Courts

From what has been already said ^^ it must be sufficiently
clear what was, in our opinion, the origin of murder-trial in
early Greece. The local courts of clans and tribes constituted
a nucleus for the development of central State courts when
civic groups emerged into being through political synoekism.
Homicide was a proper subject for htigation, in the tribal
wergeld system, simply because the normal penalty involved
a transfer of collective property or the expulsion of a tribes-
man. If then phratry-courts had to decide issues between
different neighbouring clans, if tribal courts had to decide
disputes between clans of widely separated localities, is it not
natural to suppose that the State courts of synoekised areas
would have adjudicated in disputes between members of
different tribes ? Hence the judicial assembly of tribe-kings
{(f)v\o^acri\€i<;) constituted a more or less important State
court from the most remote antiquity. In historical Athens,
Aristotle ^'^ assures us that they still judged, at the Prytaneum,

«» Op. oil. p. 249. " Ih. p. 330.

«« Coulanges, op. cit. pp. 314, 338. «» Supra, p.81 ff. ** Alh. Pol. r>7

92 POINE IN HOMER

indictments concerning animals and inanimate objects (SikoI
ayjrvx^wv). Glotz ^^ says of the Prytaneum Court : ' II semble
meme qu'il ait ete le premier et longtemps le seul tribunal
d'Athenes.*

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 estabhshment 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 ApoUinism contributed to the aboUtion of
wergeld if it did not directly abolish it. Glotz, in particular,
is anxious to establish a novel theory of his own,^^ 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.^' 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 per-
manent life and privileges of the tribe was a matter of great
difficulty .^^ 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 ^^ 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

«6 Op. cit. p. 190. «« P. 321 fE. «' See injra, pp. 179 ff., 222.

«« Coulanges, op. cit. pp. 42, 195. 6» P. 364.

JUDICIAL ASPECT 93

have described as unrestricted vendetta. It was precisely
at this juncture, as we think, that the new rehgion 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 investiga-
tions ' at their local Prytaneum ; though we cannot agree
with Miiller and Phihppi in describing as a * mock-trial ' '^°
their investigations into the guilt of animals and inanimate
objects {SiKot d-\lrvx(op). 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 he attributed to the new nmi-tribal democracy and the
religion of Apollo.

The view of Gilbert and K6hler,"i and, we may add, of
Muller,'2 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. Miiller 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.'^ 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 prehminary 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,

'" Philippi, Areopag, pp. 15-16 ; Miiller, Eum. pp. 141-2 ; see infra, p. 197.
" Supra, p. 80. " Eumenides, p. 130 CF.

'^ Miiller, op. cit. p. 123 ; see also rhilippi, Arcopag, p. 3.

94 POINE IN HOMER

indeed, in Euripidean legends evidence of the efficacy of
sanctuary to protect '* the suppHant, but we also find evidence
that it was potent merely to delay '^ 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,'^
no KpL(n<i between (f)6vo<; and rifioipla, 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 " points out
that the assembly-place of the Eoman Senate, which was a
judicial as well as an administrative council, was always a
temple. We shall see later that the murderer in the ' pollu-
tion ' period was debarred from any contact with a temple
under most serious penalties. We must then defer to a subse-
quent stage of our work '^ the final refutation of Gilbert and
of Miiller and the complete exposition of our own hypothesis
as to the origin and evolution of the Attic murder courts.

»* E.g. Ion, 1258, 1275, 1283, 1315. '^ jj^r. Fur. 250, 715.

" In Aristoc. 640, 63. " Op. cit. p. 217. " jnfra, Bk. II. ch. iii.

CHAPTEK V

RELIGIOUS ASPECT OF HOMICIDE IN EARLY GREECE

Current views : digression on evolution of Greek religion : ancestor-worship :
nature- worship : animal sacra : image-magic : anthropomorphism :
Achaean and Pelasgian contributions to Homeric religion : fusion of
Achaean and Pelasgian dogma and ritual : religious aspect of kin-slaying
amongst Pelasgians and Achaeans : origin and evolution of the Erinnyes :
origin of homicide-purgation : comparison of Pelasgian with Achaean
Erinnys, and of Homeric Erinnys with post-Homeric and ' tragic '
Erinnys.

There is a considerable variety and conflict of opinions about
the religious aspect of homicide in Homeric Greece. We have
already explained by quotations from Glotz ^ and Bury ^
the theory which conceives the shedding of human blood as
a deed which, in those days, did not touch the gods or draw
down the anger of the gods on the community. On the
other hand, Leaf, who indicates a clear and emphatic dis-
tinction between the religious beliefs and customs of the
Achaeans and the Pelasgians, holds that the Achaeans ignored
and the Pelasgians respected ^ ' the most sacred of all taboos
which forbids the shedding of kindred hlood ' : for the
Pelasgians retained the ' primitive family system, with all
its rites and taboos ' * and possessed, therefore, the ' founda-
tions of primitive society and religion.' ^ Again, Fustel de
Coulanges, in his analysis of the primeval domestic religion
of the Ancient City, says ^ that ' the shedder of blood was no
longer able to sacrifice : the hand stained with blood could
not touch sacred objects.' He believes, however, that ' the
manslayer could be purified by an expiatory ceremony.
Miss Harrison holds a somewhat similar view ^ : ' Purification,'
she says, ' is the placation of ghosts and, unknown to the
Olympians (i.e. AcJmeans), was the keynote of the lower stratum

1 Supra, p. 80 ff. » Supra, p. 78 ff. ' H. and H. p. 253.

* Op. cit. p. 251. « P. 252. « Op. cit. p. 135.

' P. 126. 8 Prolegomena, p. 53, pp. l(U-2.

96 POINE IN HOMER

(i.e. Pelasgians).' ... ' The extreme need of primitive man
for placation is from bloodshed : this is at first obtained by
offering the blood of the murderer ; later, by the blood of a
surrogate victim applied to him.' ... 'So long as primitive
man preserves the custom of the blood feud, so long will he
credit his dead kinsman with passions like his own.' ^ So,
Miiller maintains i" that the religious rites of expiation and
purification are derived from the remotest times of Greek
antiquity and were designed to reinstate the slayer in religious
communion with his family and his comrades. Purgation
ceremonies are, he thinks,^! based upon the idea that the man-
slayer must atone with his own life, but that this life may be
bought off by vicarial substitution, by a sacrificial victim
symbolical of such substitution/' Our own views upon these
subjects will appear in the course of the discussion : we shall
point out, amongst other things, the distinction between
expiation {l\aa-fi6<i) and purgation {fca6ap/ji6<;), and while
refusing to accept on the one hand the views of Miiller and of
Miss Harrison, and indicating, on the other hand, the in-
accuracies in the views of Glotz, Bury and the generality of
writers, we shall develop and expand a theory which is
suggested by Leaf's ^^ general position and which distinguishes
carefully between the rehgious attitude of the Pelasgians and
the Achaeans. To achieve this purpose it will, however, be
necessary, even at the cost of a digression, to give a brief
account of the evolution of early Greek religion.

Analysis of Early Greek Eeligion

To the scientific mind of a modern European living in the
atmosphere of a highly secularised society, nothing can appear
more curious and incomprehensible than the almost universal
belief in ubiquitous supernatural forces which is revealed in
ancient literature. Such a belief is not, however, a symbol
of savagery or barbarism ; it is merely a symptom of the
absence of scientific knowledge. The general principle that
men in all ages attribute to occult forces every effect of

' Prolegomena, p. 64. ^^ Eumenides, p. 106.

" lb. pp. 118-120. " H. and H. chap. vii.

RELIGIOUS ASPECT 97

which the cause is unknown or mysterious, is clearly expressed
by Lucretius i' :

quippe ita formido mortales continet omnes
quod multa in terris fieri caeloque tuentur
quorum operum causas nulla ratione videre
possunt ac fieri divino numine rentur.

It was natural then, in an age of unscientific mentality, that
plagues and pestilences, and diseases of all kinds, lunacy and
sterility, the failure of harvests, misfortune in peace or war,
adverse winds, volcanoes, inherited characteristics, the
activities of genius, emotion and desire, birth, growth, death
and decay — ^almost everything that crosses the threshold of
human consciousness — should be ascribed to the ubiquitous
and perpetual operation of supernatural agents. The literature
of ancient Greece and Eome is permeated with such beliefs.
We will quote just one characteristic passage from the
Eumenides of Aeschylus. When the avenging Erinnyes of
the slain Clytaemnestra threaten to hurl the shafts of their
wrath upon the Attic land because it has harboured Orestes,
whom they regard as the murderer of his kin, Athene, who
has caused a murder-court to declare him free from guilt,
apparently on a plea of justifiable homicide, commands the
Erinnyes to be appeased, and says : ' Hurl you not the
weight of your wrath upon Attica ; be not indignant, nor cause
barrenness by sending down the bhghting drops that come
from Spirits, the cruel bitter destroyers of our seed.^* . . .
FUng not upon earth the fruit of thy wild curse, causing all
things not to prosper.!'^ . . . Sow not within my boundaries
those spurs to bloodshed that ruin young men's hearts,
maddened by a frenzy not born of wine ^^ . . . but (send)
blessings from earth and from the waters of the deep, and from
the sky wind-breezes that blow with kindly sunshine over
earth : (send) fruit of the soil and of things that hve, flowing
with untiring vigour to my citizens, and of man's seed a safe
deliverance at the birth.' i' The Erinnyes, in consenting to
be appeased, reply : * With kindly prophecy wo pray for
you here, that the radiant sunUght may bring forth with speed

" De R. N. i. 151 fl. " Eummidcs, 803-6. " lb. 833-1.

!• lb. 8G0-3. " lb. 906-10.

98 POINE IN HOMER

from earth the blessings of your Hf e ^^ . . . never — such is
my boon — may the trees feel the hurtful wind or the scorching
fire that robs them of their buds ... or blight creep over
them eternally that blasts their fruitfulness : and may Pan
bring to full growth the prosperous flocks that will bear from
wombs a twofold fruit, and in due season may the produce of
rich earth present you with the good gods' gift of fortune ^^ :
... on the young men I forbid to fall the stroke of death
untimely : and that the lovely maids find each her husband —
do ye grant it, ye who reign, and ye, Fates divine ! ^^ . . .
May the roar of Faction, thirsting for evil, never in this place
be heard, nor the dust that drinks the dark blood of fellow-
citizens bring to the State, from passion for revenge, the
doom of retaliation. But may the citizens rejoice one
another with a common love and hate only in union as
one man.' ^^

The modern European, taught in childhood to accept the
Christian doctrine of the divine creation of the world, must
exert himself considerably if he is to realise that in Greek
religion the notion of such a creation is not found before the
fifth and fourth centuries B.C., and even then it existed only
in the atmosphere of a pious philosophic sect. To the ancient
Greek mind, the earth was not created ; it had been from
everlasting : it was itself divine. Gilbert Murray rightly
says 22 that the chief objects of primitive man's emotional
activity are the food-supply and the tribe-supply. By a
well-known confusion of cause and effect characteristic of the
primitive mind, the earth became the object of universal
worship, because of its association with the production of
food.

Similarly, animals came to be regarded as sacred, though
different races adopted different viewpoints in regard to their
sacred character. In some instances a certain animal was

* sacred ' simply because it was eaten : in others it was

* sacred ' because it was ' tabu ' or sinful to eat it. We shall
see that the animal slain in certain Chthonian rites could not
be eaten,23 but it was ' sacred ' all the same. The ancient

18 Eumenides, 923-7. " lb. 939-i9. "» lb. 957-62.

21 lb. 977-87. *2 Four Stages of Greek Religion, p. 43.

^ Infra, p. 149 ff. ; Glotz, op. cit. pp. 156, 182.

RELIGIOUS ASPECT 99

notion, which has survived so long in witchcraft, of the magical
power of placation by images or effigies led to the wide-
spread construction of those animal images which are so
famihar to the students of primitive rehgion.^* When
divinities in human form, when anthropomorphic sacra, take
precedence of the animal god, traces of a fusion in image-
magic are clearly visible. Whether by accident, or by reason
of some traditional connexion, certain human gods came to
be associated with certain species of animals. The sacrifice
of such animals was regarded as particularly pleasing to such
gods, and it is therefore arbitrary to assume that the sacrifice
of animals was originally accepted as a substitute for a previous
human sacrifice. Herodotus says ^^ that the image of Isis in
Egypt was that of a woman with cow's horns : that a statue
of Zeus in Egypt showed the figure of a man with the face of
a ram. When the people of Egyptian Thebes sacrificed,
annually, a ram to Zeus, they covered the statue of Zeus with
the skin of the ram.^^ We know that the worshippers of the
orgiastic Dionysus clothed themselves in fawn-skins,^' and
that the satyric choruses from which, we may suppose, Greek
tragedy developed,^^ were dressed, to some extent, as goats.
The goat and the snake, as well as the bull and the ram, seem
to have been worshipped in early times as symbols at once
of the fertihty of the soil and of the fertihty of the race. The
serpents which gaze at us so terribly from the heads of the
Aeschylean Erinnys are probably, in origin,^^ derived from
the belief that the souls of the dead are connected with the
fertihty of the earth.^" Herodotus tells us that offerings were
regularly made to an imaginary serpent which was supposed
to reside in the temple of Athene Pohas at Athens.^^ This
serpent symbohsed, hke the undying fire of the Eoman Vesta,^^
the immortal progenitor of the race.

" See, e.g., Haddon, Magic and Fetishism; Bumc, Handbook of Folk-lore ;
and Frazer, Oolden Bough, vol. i. et passim.

" ii. 40. " ii. 42. " Euripides, Bacchae, 111, 137.

^^ Aristotle, Poetics, oh. iv. (1449a) ; see, however, Ridgcway, Origin of
Tragedy, passim. 2» Sc'O infra, pp. 12(» fl., 298 ff.

»o Farnell, Cults of the Greek Sfate.-i, vol. ii. p. 650. " viii. 41.

'^ F. do Coulangcs, op. cit. pp. 35-40.

100 POINE IN HOMER

Anthropomorphism and the Olympians

In regard to the origin of anthropomorphic rehgion in
Greece, we can only say that we prefer the opinion of F. de
Coulanges,^^ which derives it from the ancestor worship of
the early Pelasgian peoples, to that of Miss Harrison which, in
its latest form, attributes it to a political anti-Persian reaction
of the sixth and fifth centuries b.c.^^ Coulange^ believes
that when once the idea of human gods took shape, it tended
at once to personify and humanise all the various objects of
worship.35 It is significant that the Persians, who had no
ancestor worship, did not conceive their gods in human form.^*
Amongst the Greeks, however, who worshipped dead ancestors
from the dawn of their history, the ' ghost ' gave its form to
the god.

Assuming, then, Coulanges' theory of the evolution of
anthropomorphism, we must regard as absurd the opinion
of some ancient writers who maintained that Homer and
Hesiod not only told false stories about the gods but gave
them, moreover, the maimers and shapes of men.^' The
precise contribution of such poets as Homer to ancient religion
is difficult to define, but we believe that it was not so much
constructive as destructive. The poet gave a certain im-
mortality to the conceptions which he expressed : the effect
of a Bible in religious evolution is essentially conservative.
It tends to stereotype for all men and for all time the religious
opinions of its day. Now Homer was the poet of the Achaeans,
and the Achaeans, as Leaf says,^^ conceived the gods as typical
Achaeans of the other world. Whether they brought new
human gods ^^ to Greece or merely gave a personal interpreta-
tion to the Pelasgian gods, we need not at the moment decide.
The gods of the Achaeans were conceived as kings and rulers
like themselves. If they do not create the universe, they at
least divide it into realms or dominions.*^ Moreover, they

" Op. cit. p. 28. " Themis, pp. 335, 447, 461. " Of. cit. pp. 36, 160.
3« Herodotus, i. 131.

" See, e.g., Cic. Tusc. Disp. i. 26, 65 ; Plato, Rep. ii. 378 a-d, 380 d, 381 d.
»» H. and H. p. 262.

*• Chadwick, Heroic Age, p. 418 ; Leaf, H. and E. p. 263 ff. ; Harrison,
Themis, p. 491, Proleg. p. 299 ; Kidgeway, J.H.8. 1898, p. 34.
«o II. XV. 190 £f.

RELIGIOUS ASPECT 101

are presented as related to one another by blood, or connected
by intermarriage, as the Achaeans were. They naturally have
their quarrels, their disputes, their rivalries and their jealousies,
as the Achaeans had. The stamp of the Achaean caste marks
the Homeric pantheon. But apart from the great Olympian
gods, there are a number of minor deities who suggest the
existence of a less privileged social and religious caste. It
is in this caste that we believe that we can find the source of
supply or the materials for the creation of the Olympic
Pantheon. Such a Pantheon could never have been the
exclusive creation of Homer. If the Achaeans created it, they
were limited, surely, by the nature of the materials at their
disposal. Their creative power was restricted and directed,
as we beheve, by a pre- Achaean evolution of grades of divine
greatness within the galaxy of Pelasgian divinities *^ : an
evolution which attributed to elemental forces and to national
ancestor-gods a power to which no mere local ' ghost ' could
aspire to attain. The Pelasgians and Minoans in their tribal
villages, and particularly in their city-religion, had, we think,
evolved the distinction between the greater and the lesser
gods, between the gods of the upper air, and those of the sea
and of the earth below, which was so characteristic a feature
of later Greek religion. True, many of their ' deities ' were
nameless, as Herodotus ^^ seems to have heard that they were
at Dodona, and as the ancestral spirits of historical times still
were, since they were addressed as Keres at the Athenian
Anthesteria.^' But the old tribal and city gods must have
had names. It would have been otherwise impossible to
distinguish them from one another in the multitudinous
deifications of an ancestor-worshipping and nature-worshipping
peninsula. Coulanges ** holds that the local gods of primitive
peoples often carry the same name even when they are really
different in form and ritual. But hero we think that we can
detect the influence of Homer and the Achaeans. The Homeric
god is stereotyped in form and character as in name. The
form and character was created, we beheve, by the military
Achaean caste, while the name was in most if not all cases
a Pelasgian product. It was all the more possible for the

" Leaf, //. and H. p. 2fil note. " ii. 52 ; soo Leaf, //. and //. p. 273.
** Harrison, Prolcg. p. 35 and note. " 6>/>. cU. pp. iyi)-2UU.

102 POINE IN HOMER

Achaeans to give character and personality to the gods, if
there had been local variations in the Pelasgian types. More-
over, the Achaeans drew, so to speak, a line of demarcation
around the gods of their choice. They created a Pantheon
of an exclusive type, which, by its prestige in later years,
checked the Pelasgian tendency to increase the number of
the greater gods, and compelled the Greeks to accept, instead,
the worship of Heroes.^^ The creation of such a Pantheon
presupposes, we think, the existence of an identity of type
within some widespread organised society. No mere local
poet or city-state could have created ifc. As we have no
evidence of the existence in pre-Homeric days of a national
union or federation of Minoan kings, or of a national
Amphictyony, such as we meet with in later times, we naturally
attribute to the ubiquitous Achaean caste and their poet-
Eoyal the creation of that Pantheon which was the mainstay
of Achaean religion. But this Pantheon was created out of
pre-existing Pelasgian materials. We do not agree with Leaf
and Chadwick in the view that the Achaeans were the creators
of Greek anthropomorphic religion.*^

Achaean-Pelasgian Eeligious Fusions

Many of the difficulties presented by Homeric religion are
to be attributed to the fact that that religion was an eclectic
product. If we compare the beliefs and customs of the
Achaeans and the Pelasgians, it will be obvious that despite
the circumstance of their social coexistence, a complete blend-
ing or fusion in dogma or in ritual would have been impossible.
Yet it is equally impossible to suppose that both Pelasgians
and Achaeans preserved their religious rites and conceptions
unadulterated and pure.

Miss Harrison is, we think, mistaken — she seems to admit
it in a later work *' — in assuming that the Achaeans are to be
associated with Olympian ritual, and the Pelasgians with
Chthonian ritual, and that there is a rigid line of distinction
between the two castes. Just as the Olympian rites which
are so common amongst Homeric Achaeans were, we think,

*5 Leaf, H. and H. p. 273. " lb. p. 263.

*' Themis, p. 134 note.

RELIGIOUS ASPECT 103

practised also by Minoan kings and Pelasgian nobles, so the
Chthonian rites of the tillers of soil were practised, on occasions,
by the Achaeans, and would perhaps have been more fre-
quently practised if there had not existed within the two castes
differences of dogma, such as we shall presently indicate. In
our analysis of the social and judicial aspect of Homeric homi-
cide we were enabled to differentiate clearly between the
Achaeans and Pelasgians, for their social organisations were
different and distinct. In a rehgious analysis, however, the
gulf cannot with equal clearness be indicated, if we suspect
that the practice of common rites and the eclectic conception
of common gods may have modified the differences which are
otherwise maintained. Leaf is aware of the complexity of
the problem, which he aptly describes as a ' tangled skein.' *^
We do not, however, agree with Leaf's opinion *^ that ' there
is no trace in Homer of any Chthonian rehgion,' if the word
* Chthonian ' carries its usual significance. Leaf imphes that
the Achaeans, before they came to Greece, were worshippers
of the dead. The absence of such worship in Homer is, he
says,^° due to the severance of the mihtary adventurer from the
tombs of his fathers. ' It is impossible to pay due rites to the
departed when their tombs have been left far behind in the
course of long migrations.' We have seen^i that the Achaeans
were long enough settled in Greece, at the time of the Trojan
war, to have produced relations extending to second and third
cousins once removed. Surely the habit of ancestor-worship
could easily have been renewed in the course of so many genera-
tions. We believe that the Achaean conception of a spirit
land and their practice of cremation are a clear indication
of the absence of the primitive ideas of ghost-raising, ghost-
laying and fertihty worship, which are the regular ^^ concomi-
tants of the cult of the dead. The dogmas ivhich underlie these
different burial rites canriot, we think, be fused. Theij can only
combine by the evolution of an eclectic doctrine. Had such a
doctrine evolved in Homer ? The only passage in the Homeric
poems which can help us to decide is the Nekuia^^ of the Odyssey.

" H. and II. p. 261. «» lb. p. 267.

*» lb. p. 267. " Supra, p. 21.

** Cf. Halliday, Oreek Divination, p. 242 ff. ; Darcmberg and SurHo, Art.
Magia. " q^i^ ^i. 23 11.

104 POINE IN HOMER

The Nekuia of the Odyssey.

Eidgeway's theory ^^4 Qf ^]^q difference between the Pelasgian
and the Achaean cults of the dead is now well known. The
former, he maintains, buried their dead, honoured them with
periodical offerings of food and drink, and beheved that the dead
lived in a subconscious state in the tomb ; the latter, however,
cremated their dead, practised no regular tomb offerings ixoaC),
and beheved that the souls of the dead flitted away through
the air to a place called Hades in the west. The curious thing
about the Nekuia is that the souls of the dead in Hades are
represented as anxious for food and drink, and when Odysseus
sacrifices there, the ghosts come forth to lick up the blood of
the victim. Further, it is only when they have drunk the blood
that they regain their memory and recognise their friends again.^*
Odysseus thus describes the scene at the entrance to Hades to
which he has been miraculously permitted to descend : ' There
{i.e. at the entrance to Hades) Perimedes and Eurylochus held
the victims and I drew my sharp sword . . . and dug a pit ...
and about it poured a drink-offering to all the dead . . . mead
and sweet wine and water . . . and I took the sheep and cut
their throats over the trench and the dark blood flowed forth
and lo ! the spirits of the dead came out of Erebus . . . and
they flocked together from every side about the trench.^'
First came Elpenor that had not yet been buried . . . ^' (who
said) " Leave me not unwept and unburied . . . burn me and
pile me a barrow on the shore. . . . " ss Anon came the soul
of the Theban Teiresias . . . ^^ (who said) " Whomsoever of
the dead thou shalt suffer to approach the blood, he shall
prophesy truthfully . . ." ^° : my mother too drew nigh and
drank the dark blood and at once she knew me.' ^^

Miss Harrison seeks to explain the difficulty which is pre-
sented by this unique passage concerning the Homeric cult of
the dead by maintaining that it is a fusion of Chihonian &nd
Olym'pian ritual.^^ On the assumption which underlies the
reasoning in * Themis,' namely, that the Homeric poems
assumed their final form and their characteristic theological

" E.A.O. ch. vu. p. 494 ff. " gee, e.g., v. 153.

" Od. xi. 23-37. " lb. 51-2. " lb. 72-5. " lb. 90.

«« lb. 147-8. " lb. 153. " Proleg. pp. 74-5.

RELIGIOUS ASPECT 105

setting in the time of Pisistratus,^^ it is surprising that we have
not more frequent instances of such a fusion in the Homeric
poems ! Those poems contain many references to Chthonian
deities, e.g. to the Erinnyes, to Ge, and to Hades. But in the
Nekuia there is question not of gods but of ghosts — ghosts,
too, conceived in a predominantly Achaean way, as hving
together in a western spirit-land. Other Chthonian rites are
frequently mentioned in Homer, but not the placation of ghosts.
Thus, in the Iliad ^ Agamemnon swears a solemn oath in
a manner which is essentially Chthonian. With sword in
hand and a boar prepared for sacrifice, he prays (or curses)
thus : ' Be Zeus before all witness . . . and Earth and Sun
and the Eriimyes who under Earth take vengeance upon men
who forswear themselves, that I . . . and if aught that I
swear be false, may the gods give me all sorrows manifold . . .'
' He spake and cut the boar's throat with the pitiless knife :
and the body Talthybius whirled and threw into the great
wash of the hoary sea.' ^^ The reason for the action of
Talthybius in this passage is that, in Chthonian ritual the
animal which was slain to symbohse the hypothetical destruc-
tion of the swearer if certain promises were not carried out,
could not be eaten and hence was thrown into the sea.

Eidgeway, who believes that the whole of the Iliad and the
Odyssey was composed before 1000 b.c.^^ and who has done so
much to differentiate Achaean and Pelasgian burial customs,
finds in the Nekuia a fusion of Achaean and Pelasgian ideas.
' Such a blending of rehgious ideas,' he says, ' is but the natural
concomitant of the intermixture of two different races and
cultures.' ^' But Ridgeway is still not quite accurate if he
means to imply that any real blending of ideas had occurred.
We have said that the ideas underlying these different rites
could never be really fused, but they could amalgamate in the
form of an eclectic religion. We may regard it as a confirma-
tion of our view that Eidgeway has to confess that the fusion
of Achaean and Pelasgian ritual of which there is a solitary
suggestion in the Nekuia does not seem to have estabUshod

« Themis, pp. 335, 445 ff. " xix. 250-268.

«* Cf. II. iii. 268-292. So the Trojans offer black lambs to Zeus and
a black sheep to Ge, II. iii. 103, 119, 246, 273. 292, 310 ; iv. 158. See Glotz,
p. 156. " E.A.O. p. 678. «' lb. p. 6-12.

106 POINE IN HOMER

itself in Greece very long before the time of Aeschylus. ^^ He
says : ' According to the Homeric doctrine, once the body
was burned, the spirit returned no more from its dwelling
place with the dead. But on this point Aeschylus held a very
different view. It is evident that by the time of Aeschylus
an eclectic doctrine had been evolved. The Homeric belief
in a separate abode for disembodied spirits was adopted, but
at the same time the ancient doctrine of the constant presence
of the soul in the grave of its body was retained, the gulf
between both doctrines being bridged over by the theory
that even though the body was burned, the soul could return
to its ashes in the grave.' Now the tomb -offerings made by
Odysseus in the Nekuia do not take place at a tomb, but at the
entrance to Hades. The inference from this fact is not that
there was a blending of Achaean and Pelasgian ideas, in the
cult of the dead, but that it was possible for Achaeans who
practised other forms of Chthonian ritual to perform such rites
when commanded to do so in the realm of Hades, the only
place where their dogmas made such rites intelligible. If the
Achaeans had beHeved in the Pelasgian doctrine of the presence
of the soul in the tomb, they would normally have made
Chthonian offerings at their tombs. Believing, as they did,
that the souls of the dead lived in Hades, they could only find
meaning in such a rite if they came, as Odysseus came, to the
realm of Hades. We have seen that the Achaeans, and Odysseus
in particular, were familiar with Pelasgian beliefs, and had,
in common with their subjects, certain Chthonian rites. The
Nehuia therefore, instead of proving a fusion of beliefs, seems
to us to suggest, on the contrary, that such a fusion had not
taken place in Homeric Greece.

In the Odyssey ^^ Circe instructs Odysseus in the rites which
he must perform when he goes to the ' dank house of Hades.'
The fact that he has to be instructed in this matter suggests
that it was not a normal procedure in his domestic hfe. The
same may be said about the command of Circe in regard
to Teiresias. Circe bids Odysseus, when he performs the
Chthonian rite in Hades, to promise that on his return to
Ithaca he will offer up in his home ' a barren heifer ' and fill
a pyre with treasures, and ' sacrifice apart, to Teiresias alone,

«» E.A.G. p. 549. ** X. 520 ff.

RELIGIOUS ASPECT 107

a black ram without blemish.' The burning of a mock-pyre,
and the sacrifice of a barren heifer, may be an Achaean rite.
The motive is the placation of the dead, but the rite is quite
different from that regular feeding of the dead which is so
frequent in necromantic magic and in ancestor- worship.''"
The offering of a black ram to Teiresias is, however, somewhat
different. It is Chthonian, but we connect it especially with
the worship of ' prophets.' Teiresias was a prophet of the
old Pelasgian religion. He belongs to a stage in the evolution
of prophecy which is akin to necromancy and witchcraft and
which preceded prophetic colleges, ' magical secret societies,' '^
or divination by direct inspiration. This latter divination
retained indeed traces of the older rites. Thus in the Ion of
Euripides '^ the pilgrims to Apollo at Delphi are required before
consulting the oracle to sacrifice a irekavo^;, a Chthonian
offering of meal, honey, and oil. So in Vergil's story of the
visit of Aristaeus to the underworld, we find that Cyrene tells
Aristaeus to offer, nine days after his return, a Chthonian
sacrifice to an offended prophet, Orpheus :

inferias Orphei Lethaea papavera mittes
et nigram mactabis ovem lucumque revises.''

We do not therefore agree with H. Seebohm '^ when he says
that the placation of Teiresias proves that offerings to the dead
were regularly made by the Achaeans in their ordinary domestic
life.

Religious Aspect of Homicide

We have pointed out that in Homeric Greece there were,
80 to speak, two different religions, which reflected, in their
main features, the social caste-differences of the Achaeans and
the Pelasgians. It has been rightly said that primitive man
creates his gods in his own likeness, and in the absence of any
definite Homeric references to the religious aspect of homicide
we must assume that the two religions of Homeric Greece
adopted, towards homicide, the attitudes of the two corre-
sponding social strata. Amongst the Achaeans, we have seen,

"> Ridgeway, E.A.O. pp. 328-9, 494-549.

" Harrison, Themis, p. 55. " 226.

" Oeorgr. iv. 545 ff. '* Orcek Tribal Society, p. 6.

108 POINE IN HOMER

homicide was a deed which concerned only the slayer and the
nearest blood-relations of the victim ; there was no co-operation
of large groups, no trial, no civic interest in the execution of
vengeance : it was entirely a matter for * private settlement '
between the relatives of the slain and the individual slayer.
And this ' settlement ' was not a payment in money or in kind :
it was a payment in blood, and in blood alone. The Achaeans,
as a caste, had no interest in such ' crimes ' : on the whole,
they regarded bloodshed as a local misfortune, which should
not be aggravated by an extension of the dispute to wider
areas, and therefore they frequently adopted and protected
murder- exiles. We are not then surprised to j&nd that in
Homer the Olympian gods of the Achaean caste manifest no
anger against a murderer.

In the Pelasgian tribal religion we may assume that the
position of the homicide was somewhat different. It required
the payment of wergeld to purchase back the friendship of
tribal gods. But we have seen '^ that for slaying within the
kindred no payment of wergeld could be offered or accepted ;
and we have said ^^ that the penalty of slavery or bondage
was probably inapplicable and that therefore exile was the
normal punishment for bloodshed within the clan. It follows
that the murdered man whose body was interred in the family
tomb would never have come in contact, through worship,
with his kinsman who had slain him. And in this sense we
may accept the dictum of Coulanges " that ' the hand stained
with blood could not touch sacred objects : the shedder of
blood could not sacrij&ce.' Hence it is perhaps significant that,
in Homer, Tlepolemus who, when he had slain his maternal
uncle, went into exile to Ehodes, is said to have been ' loved
by Zeus,' '® for by exile he had atoned for his offence. In
ordinary cases of homicide, however, between members of
different clans, we must suppose that the gods of the phratry,
of the tribe, and of the city became reconciled to the slayer
if the relatives of the slain received the customary wergeld.
If then Miss Harrison says '^ that * so long as primitive man
retains the custom of the blood-feud, so long will he credit his
dead kinsmen with passions hke his own,' she is compelled,

" See aupra, p. 8. " Supra, p. 9. " Op. cit. p. 125.

" II. u. 669. " Proleg. p. 64.

RELIGIOUS ASPECT 109

by her own reasoning, to admit that the ' ghosts ' of murdered
men, in the tribal wergeld system, did not revolt at the presence
of a murderer, unless he were a kinsman.^°

Coulanges ®^ implies that in addition to clan-religion there
was domestic worship. Now this domestic worship was shared
by a husband and wife who normally belonged to two different
clans, and are we to assume that if a husband slew his wife
or a wife her husband, the domestic rehgion would have com-
pelled them to go into exile even when the clan could atone
by wergeld ? This point we cannot decide with any cer-
tainty. Clytaemnestra, in later legend, offers sacrifice at the
tomb of her murdered husband : her children assert, not that
it is sacrilegious, but only that it is unavaihng as a placation.
We think that the tribal penal code did not demand the exile
penalty for homicide of this kind and would have permitted
wergeld. But within the genuine kindred, and especially
within the small kindred, bloodshed, particularly parricide,
was from the earHest times a serious religious offence.

There remain for discussion two problems which most
writers regard as intimately related — namely, the origin and
evolution of the Erinnyes, and the source and significance of
the ritual of homicide-purgation.

The Erinnyes and Purgation

The Greek word ipivvv<i is probably an adjective meaning
' angry,' and should therefore be applicable to any spirit,
whether ghost or god. But Miss Harrison ^^ beHeves that the
word was originally an epithet of a ghost or ker. The following
is a summary of her opinions : The Keres {K-qpe^;), she thinks,
were primarily ghosts : they were neutral potencies who might
be either quite harmless ®^ or baleful bacilH, or good spirits.^*
The word Erinnys was originally probably an epithet of ker,
and denoted a ghost-pest, a Peine. The Erinnys primarily is
the ker of a human being unrighteously slain. It is the ker
as Poine.^5 Thus, because it was a ker, the Erinnys was
primarily a human ghost, but the word came, by a process of
BpeciaUsation, to be appHed only to such ghosts as are angry

" Infra, p. 121. " Op. cit. p. 52. " Prolcg. p. 214.

" lb, p. 166. «* lb. pp. 176, 184. " lb. pp. 213-214.

110 POINE IN HOMER

because they have been murdered.^^ In Homer, she thinks,
the Erinnyes have passed beyond this stage and are ' per-
sonified (? deified) almost beyond recognition.' They are no
longer souls, but the avengers of souls. They have even lost
their exclusive connexion with souls, and are become the
avengers of the moral law, vague equivalents of underworld
Zeus and Persephone.^'

Now Miss Harrison implicitly connects the Erinnyes with
purgation, since she asserts that ' purification {i.e. purgation) is
the placation of ghosts.' ^^ But in Homeric times the ghosts
of murdered men would not, she holds, accept any purgation
sacrifice save the blood of the murderer.^^ Therefore, in a
certain sense homicide could be purged, and in another sense
it could not be purged in Homeric times !

Horner,^" she says, does not understand the mystery of
Bellerophon and the Aleian plain, but Apollodorus ^^ reveals
the fact that Bellerophon slew his brother unwittingly and
that he was purified by Proetus. Apollodorus, she thinks, is
unhistorical in speaking of the purification of Bellerophon :
in those old days, she says,^^ he could not be purified. But as
murder was a physical infection, Bellerophon had to go to the
Aleian plain, an alluvial deposit which had recently been
recovered from the sea and which was not therefore included
in the ' earth ' which was polluted by his deed of blood. The
fallacies of this interpretation will become evident in the
course of our reasoning. At present we will merely point out

(1) that there is no evidence for the assertion that murder was
a ' physical infection ' in the Homeric age. Everything that
we have said about the Pelasgian wergeld system and the
Achaean protection of murder-exiles proves the contrary ;

(2) the plain of wandering, if that is what Homer meant by
'AXrjiov, (it may have been a local place-name which conveyed
to him no special meaning,) does not imply an alluvial deposit
of any kind, but possibly a special place which known
murderers, condemned to perpetual exile, were wont to
frequent ; (3) Apollodorus may be unhistorical, in speaking of
the purgation of Bellerophon, but so is every Greek writer of
the historical period who attributed purgation to Achaean

86 ProUg. p. 215. " /j. p, 216. 88 75. p_ 53. 89 75, p. 22O.

»» II. vi. 200 £f. " ii. 2. 3. ^^ Proleg. p. 221.

RELIGIOUS ASPECT 111

heroes, as Aeschylus, for instance, does, to Orestes ; (4) to
explain the absence of references to purgation in Homer by
suggesting that the death of the murderer was the only purga-
tion of his crime, and to imply that Bellerophon was fleeing
from purgation when he fled from death to the Aleian plain, is
equivocal and misleading. For a murderer was either purged
or he was not purged ; and if a murderer was put to death in
sacrifice, no one could logically speak of him as ' purged.'

F. de Coulanges seems also to connect the purgation rites
for homicide with the worship of the dead. In the primitive
family group, he says,^^ ' there were domestic morals. The
shedder of blood was no longer allowed to sacrifice or to offer
libations or prayer or to offer the sacred repast. . . . The hand
stained with blood could no longer touch sacred objects.
To enable a man to renew his worship and to regain possession
of his god, he was required at least to purify himself by an
expiatory ceremony.' This opinion implies that such rites
were as old as the domestic religion of the Family. The most
serious objection to this implication is that Homer has no
genuine reference to any such ceremony.

Bury, who rightly attributes the origin of purgation rites
for homicide to post-Homeric times, nevertheless connects those
rites with the worship of the Erinnyes and of the Chthonian '
deities. * Gradually,' he says,^* ' as the worship of the souls
of the dead and of the deities of the underworld developed,
the belief gained ground that he who shed blood was impure
and needed cleansing. Accordingly, when a murderer satisfied
the kinsfolk of the murdered man by paying a fine, he had also
to submit to a process of purification and to satisfy the
Chthonian gods and the Erinnyes or Furies who were, in the
original conception, the souls of the dead clamouring for
vengeance.' The validity of this conception of the origin
of the Erinnyes will be examined presently. We hope also
to show, at a later stage, that wergeld and ' pollution '
were mutually destructive.

0. Miiller holds ^^ that the rehgious rites of expiation and
purification were derived from the remotest times of Grecian
antiquity and were designed to reinstate the slayer in com-
munity of worship with his people. Confronted with the diffi-

»* Ancient City, pp. 125-G. »* H. of G. p. 172. »» Eum. p. 100.

112 POINE IN HOMER

culty that such rites are not mentioned in our Homeric text,
Miiller argues,^^ firstly, that the reading a<^vLTk(ii (= purifier)
instead of a^veiov (= rich man) in a passage in the Iliad *'
was the reading of the original text of Homer. He quotes a
schoHast's opinion to the effect that there is an anachronism
in the verse. Secondly, he holds that the absence of Homeric
references to purgation for homicide is not surprising, because
the poet's hearers would have taken it for granted as a matter
of course ! We must leave our readers to weigh for them-
selves the value of this argument. The opinion of the scholiast,
if it proves anything, proves that there was an obviously false
reading interpolated in the text.

Miiller conceives ^^ purgation {Kadapfi6<i) as a form of expia-
tion {l\acr/x6<i) which is closely related to the worship of the
dead and the Erinnyes, and believes that it originated in
the idea that the life of the manslayer (and sometimes the
lives of all his clansmen) must be sacrificed in atonement
for homicide. Such a sacrifice, he thinks, came to be obviated
in course of time, either (1) by the substitution of a surro-
gate victim, or (2) by the degradation of the murderer to a
state of servitude, or (3) by wergeld, which was originally
suggested by the new religious custom of accepting the sacrifice
of an animal in lieu of the death of the slayer.^^ Eegarding
the Erinnyes as Chthonian deities to whom this expiation
is offered, he is surprised to find that, in the Eumenides of
Aeschylus, the purgation of Orestes does not lay to rest the
wrath of the Erinnyes. To obviate this difficulty he falls
back on the obviously absurd assumption that Aeschylus, for
dramatic purposes, presents Orestes as not completely puri-
fied.i"" The text of Aeschylus and the text of Homer furnish
the best refutations of such hypotheses.

Glotz is quite definitely of the opinion, and in this we agree
with him, that purgation for homicide was unknown to the
Greeks of Homeric times. In Homer, he say8,i°i we find traces
of a purely physical cleansing which is required as a preliminary
to sacrifice : but such words as fnalvco, fj,tap6<i and [juaK^ovot
refer to the victim, not to the slayer.i"^ Homicide is not a

»• Eum. pp. 104-5 ; eupra, p. 52. " xxiv. 482. »» Op. cit. pp. 112-21.
»» lb. p. 123. "» lb. p. 133. "1 Op. cit. p. 228 S.

"» II. iv. 146, xvi. 795 ; xxiv. 420 ; v. 31, 455, 844, xxi. 402.

RELIGIOUS ASPECT 113

religious offence : the murder exile, received without scruple,!**^
eats at the same table as other guests, and takes part in liba-
tions and in prayers. The first genuine instance of purgation
for homicide occurs in the Aethiopis of Arctinus of Miletus
(750-700 B.C.), and the practice continued to develop until it
reached its complete systematisation in the time of Uracon.^*^*
' Its development,' says Glotz, ' coincides with the disappear-
ance of patriarchal clans and the progress of city life.' The
purgation-system mediated the transition from ' private
vengeance ' to ' social justice.' It was derived, he thinks,i°^
from the Semites. Before its advent in Greece, the Greeks
had long practised Chthonian rites, upon which, so to speak,
it was easily grafted, such rites, for instance, as that which
accompanied cursing or swearing, a rite in which ' purging '
water was thrown over the hands of those about to swear,^^^
or that which was associated with solemn reconciliations after
feuds or enmities.^"' Hence, says Glotz, it came about, by
a natural transition, that in historical times the preliminary
pleas on oath of the accuser and the accused in cases of
homicide were taken at the altar of the Erinnyes, and it was
at this altar that sacrifice was offered by the defendant
acquitted of murder by the Areopagus and by the returned
exile who had paid the penalty of involuntary homicide.^"^

Returning to Miss Harrison's theory of the Erinnyes, we
are of the opinion that the epithet epivvv^ was originally
equally applicable to all supernatural beings, whether ghosts
or gods, but that before the time of Homer the epithet came to
be hmited to such divinities as were, for some reason, difiicult
to placate by the ordinary magic of placation.^"^ The elemental
forces which were deified, as we think, before the advent of
the Achaeans, developed, under Achaean influence, a neutral
and capricious nature, varying in moods of sun and shower,
of calm and storm, like ' typical men of the other world.'
Like men, they could be placated by gifts and by hospitable
entertainment. But the ghost-worship which characterised

^o» Op. cit. pp. 230, 231. i"* lb. p. 232. i" lb. p. 153 ; infra, p. 141.

I" Cf. Jl. iii. 268-270, xix. 250. »07 Qd. xxiv. 545.

1°* Glotz, op. cit. p. 155; Dinarcbua, 47; Antiphon, IJer. 11; Taus.
i. 28. 6 ; ApoU. Rhod. iv. 715.

"• Reo Tl. ix. 572 ; rf. Miiller, Eum. p. IGl, on tho worship of Dcnictor
Erinnys.

114 POINE IN HOMER

the Pelasgian stratum was of a much more gloomy and terrible
nature. Miss Harrison thinks ^^^ that Homer exalted the
Olympians but caused the bad aspect of Chthonian deities
and ghosts to be unduly emphasised. Though the Erinnyes
are relegated by Homer to Erebus, yet he does not think of
them as ghosts, but as minor deities who carry out instruc-
tions from their superiors. They are connected with Zeus
(of the underworld), with Ge (the Earth), with the Sun (who,
like Zeus, has an underworld aspect, for he too goes down
every evening to Hades in the west), and with the Moirae
who, though originally agricultural personij&cations of the
Seasons, rapidly became synonymous with Destiny itself,
and in Homer are superior even to Zeus.m It is especially
in the ceremonies of cursing and of swearing that these
Chthonian powers are invoked in Chthonian ritual. We have
already 112 indicated Miss Harrison's error in associating the
Achaeans exclusively with Olympian, and the Pelasgians with
Chthonian ritual. She is, we think, equally mistaken in
assuming that the pre- Achaean Erinnys was an irrational being,
predominantly animal in form, which had to await the coming
of the humanising Achaeans before it assumed a respectable
' personified ' shape. We think the Pelasgians retained quite
faithfully the original anthropomorphic conception of the
Erinnyes, while the Achaeans merely regarded them as minor
deities who obediently submitted to ' Olympian ' authority.
The precise nature of the Pelasgian cult of the Erinnyes in
Homeric Greece is rather difficult to define. In the Pelasgian
religion there was but a small and indescribable difference
between ghosts and gods, between minor deities and greater
deities. It is probable that the Pelasgians practised, occasion-
ally, Olympian ritual — for instance, at pubhc festivals and in
civic worship ; but in the local domestic worship of the clan,
the phratry, and the tribe, their placation of ancestors gave a
predominantly Chthonian tone to their whole rehgious outlook.
Hence their Erinnyes, also, though originally spirits which were
angry but placable, easily became spirits, whether ghosts or
gods, whose wrath was almost implacable. But the Achaeans
did not reahse the nature of these Erinnyes : and hence in
Homer they almost assume the role of ministering spirits,

110 Proleg. p. 172. i" Leaf, H. and H. p. 18. "* Supra, p. 102.

RELIGIOUS ASPECT 115

sent to warn or to punish. They are not wicked and mahcious,
Hke the Harpies or the Sirens. Thus they are much more
human and less, so to speak, diabohcal than the real Pelasgian
Erinnyes, and this is, perhaps, what Miss Harrison meant to
convey when she said ^^^ that ' in Homer they are personified
beyond recognition.' The Achaeans could not appreciate the
terrible potentialities of the angry ghost-god of the Pelasgians,
for the simple reason that they did not worship the ghosts of
departed ancestors or any kind of ghosts.

It would, however, be a serious error to suppose that the
Pelasgian Erinnyes were as formidable and as implacable as
the Erinnyes of post-Homeric times. Moreover, it is gratuitous
to assume that ghosts were primarily and necessarily angry
because thay had been murdered. There is no evidence that
homicide in Pelasgian times generated implacable Erinnyes.
We admit, with Miss Harrison,ii^ that primitive man credits
his dead kinsman with passions like his own. But we have
already pointed out ^^^ that if the passions of primitive man
are checked and controlled by a tribal society which tramples
upon individual instincts, and acts in a collective capacity,
if wergeld, according to tribal and early civic law, permits
a slayer to remain at home and guarantees him immunity
from vengeance while his hands are still wet with blood,
we cannot reasonably ascribe to ' dead kinsmen ' a fierce and
implacable desire for vengeance.

How comes it then, we may ask, that so many writers
regard the evolution of early Greek blood-vengeance, and a
corresponding evolution in the blood-thirst of the Erinnyes,
as a transition from the wild to the tame, from the fierce to
the gentle, from the barbarously savage to the rationally
civilised ? The reason is twofold. First of all, previous writers
have not distinguished between the tribally controlled Pelas-
gians and the bellicose Achaeans, and have therefore misin-
terpreted the text of Homer. Secondly, many writers have
regarded the dark age of chaos of post-Homeric Hesiodic days
as a valid picture for early Greece as a whole. This confusion
has not only affected modern writers, but it also affected the
Greeks of historical times. The various legends of post-Homeric
times came to be regarded as a proper medium for the intorpre-

"» Proleg. p. 215. "* lb. p. 04. "» Sujjra, p. lO'J.

116 POINE IN HOMER

tation of Homeric saga. The Athenians of the Perielean age
were compelled to regard as barbarians their forebears of pre-
Draconian times. It is most important to bear this point in
mind, in view of our subsequent analysis of homicide in Attic
tragedy. We do not assert that all the legends of Attic
tragedy are ' unhistorical.' We shall see that in Euripides
many legends suggest a reference to a period which we
may describe as Homeric or, at least, pre-Hesiodic, and are so
faithful a reproduction of that age that they must be either
attributed to the most skilful conscious archaising on the part
of the dramatist, or regarded as genuine legends which had
been transmitted with the least possible adulteration. But
most of the legends which we find in the Attic tragedians and
in the later epic and prose writers are either adulterated saga,
or inventions framed in imitation of such saga. To base a
theory of social or religious evolution on such legends is
obviously to build upon sand.

As an illustration of the confusion which may thus arise,
we will cite the legend of the Boeotian Athamas which is given
by Herodotus 11® and by Pausanias.^i' Pausanias says that
Athamas, King of Orchomenus, slew his son Learchus after
having made an abortive attempt to sacrifice his son Phrixus
to Zeus Laphistius on a neighbouring mountain. Herodotus,
however, says that Phrixus was slain by Athamas, and that,
as a punishment for this act, an oracle decreed that the
Achaeans of Thessaly, to whom Athamas had fled, should
purge their country by slaying Athamas in sacrifice. When
they were on the point of offering up Athamas, as a * scapegoat '
for their sins, Cytissorus, son of Phrixus, arrived from Colchis
and saved him ! The natural avenger of Phrixus became the
deliverer of his slayer, even in defiance of the oracle ! The
gods, now seriously annoyed, forbade the descendants of
Cytissorus to enter the Prytaneum of the city, and a mock
human sacrifice was regularly offered to make amends to the
gods for their loss. We believe that this legend is merely
an attempt to explain two mock human sacrifices which
survived, in Boeotia and in Thessaly, in historical times, and
that the fact of their contiguity led to the association of Athamas
with Phrixus in the legend.

"« vii. 197. "' ix. 34.

RELIGIOUS ASPECT 117

Stories of this kind have suggested the theory that the
rites of homicide-purgation originated in human sacrifice :
but they are merely aetiological. Moreover the survival, in
historical times, in barbarous countries on the outskirts of
Greece, of actual human sacrifice, and the mock sacrifices of
human beings which were offered at certain festivals in various
places, helped to confirm what stories of actual human sacrifice
in post-Homeric legend, and stories of bloodshed which could
be interpreted as human sacrifices in the Homeric poems,
all seemed to suggest, namely, the opinion that all the Greeks
of pre-Draconian days practised human sacrifice and were
only induced to cease from the practice by the device of a
surrogate victim. But there is no trace of real human sacrifice
in Homer, certainly no trace of the sacrifice of a murderer's hfe
to gods who demanded it.

We shall see later that, in the ApoUine code, death was
probably the invariable penalty for kin-slaying, ^^^ and there
was no ' purgation ' : but in other cases purgation was
possible, and in the purgation ceremony an animal was slain.
The conclusion which is suggested prima facie by these facts,
namely, that at one time human sacrifice was the only purga-
tion for homicide, is not necessarily correct. We beheve it is
incorrect. We agree \Ndth Glotz^^^ in deriving the purgation
rite from Chthonian sacrifice in its general aspect. In such
sacrifice, originally, human beings were probably offered,
prior to, contemporarily with, and even subsequent to, the
adoption of animal sacrifice. We cannot legitimately assume
that the latter supplanted the former. Glotz points out that
rehgion, being conservative, tends to preserve in ritual elements
which civihsation has abandoned. Hence arose the mock-rites
of human sacrifice which took place in historical times.

The belief that homicide-purgation originated in the sacrificial
slaying of the murderer was encouraged by the similarity which
existed between the rites of homicide- purgation and the ordinary
ritual of Chthonian expiation. We shall see later that, in the
ceremonial of purification which was applied to persons guilty
of homicide, from the seventh century b.c. onwards, the blood
of a slain animal was poured over the hands of the slayer, and
allowed to flow away into the sea or into a running stream.

"« Infra, pp. 142, 159. "» Op. cit. p. 153 ff.

118 POINE IN HOMER

Thus, homicide-purgation {Ka0ap/x6^) easily came to be regarded
as a kind of expiation {l\a(r/j,6<;) ; but it differs fundamentally
in meaning from expiation, inasmuch as it is symbolical of the
fact that a social or religious obligation has been discharged,
rather than of the fact that it is being thereby discharged. The
sacrifice of an ox or a sheep or a ram to a god or a ghost was
in itself a payment or a retribution. But homicide-purgation
{Ka9apix6<i) was never permitted until the slayer had re-estab-
lished his normal social equilibrium, had suffered the penalty
/ prescribed by law, namely exile, temporary or perpetual, and
was ready to resume religious communion with his fellow-men.
i Since, therefore, homicide-purgation was rather a symbol of
L reconciliation than a medium of expiation, it was more closely
allied to the rites which accompanied the swearing of oaths,^^^
the giving of pledges and the making of contracts. The
animal on which an oath was sworn could not be eaten : so,
too, the pig or the lamb by whose blood a murderer was
* cleansed ' could not be eaten. Now it is unfortunate that
such ceremonies, which were really symbolic of reconciliation,
should have been so similar to the general ritual of religious
expiation that they could easily be confused. There is a vast
difference in meaning between reconciliation and the aversion
of evil, yet all these ideas were confused in the general system
of Chthonian ritual. As an illustration of this confusion we
may cite a passage from Vergil, in which is described a rite
which is really an * aversion of evil,' a kind of purgation by
anticipation. Urging the farmer to be religious in the interest
of his crops, he says ^^i :

cui 122 tu lacte favos et miti dilue Bacclio,
terque novas circum felix eat hostia fruges.

The milk, honey and wine here mentioned are the characteristic
offerings in the placation of ghosts.^^a ^\^q j-i^g -^ag easily
transferred to Demeter or Ceres, the Chthonian goddess, because
of the natural tendency of Chthonianism to identify the ghost
with the god. The ceremony of carrying a victim round the

^^^ Cf. Deuteronomy xxi. 1-9. In the case of homicide by a person tin-
known, the Elders and Judges go to the nearest city and taking a heifer they
kUl it, and all the Elders of the city wash their hands over the heifer, saying
' We know not the slayer.' ^^^ Georg. i. 344. ^** i.e. Ceres,

1" See, e.g., Aesch. Persae, 203, 220, 609-17.

RELIGIOUS ASPECT 119

crops was not a symbol of atonement for moral guilt so much as
an aversion of quasi-physical evil spirit which caused sterihty.

Athenaeus,!^* describing the ' purgation ' of an Arcadian
city which was necessitated by the visit of certain citizens from
a town which was polluted by bloodshed, says : ' They made pur-
gation of the city, carrying " victims " round the city territory.'
The similarity of this ceremony to the ' aversion ' rite described
by Vergil is obvious. Yet this ceremony is somewhat different
from the purgation of an actual homicide, which we shall de-
scribe more fully later.^^^ In the former a number of victims
are slain ; in the latter, only one. Now, if homicide-purgation
originated in human sacrifice, and if, as Miiller maintains,!^^
wergeld was suggested to men by the de facto acceptance,
on the part of the gods, of an animal substitute, why was the
number of animals sacrificed in homicide-purgation limited to
one ? Why did men not offer to the gods at least the saraad
or insult-price,!^' which generally consisted of a number of
animals ? The sacrifice of only one animal in such a ceremony
cannot be explained by Miiller's hypothesis. It can, however,
be made intelhgible if we assume a direct derivation of the rites
of homicide-purgation from the ritual which accompanied
solemn oaths and reconciliations. In such a ritual, only a
single victim was slain : its death was a kind of inductive
symbol of the fate of its slayer, if he ever proved false to his
oath. But in ceremonies of general purgation, such as
Athenaeus describes, there was an element of expiation, or
aversion, and hence there was no limit to the number of victims,
for there was no such limit in expiatory sacrifice of any kind.

We shall see later how, in historical times, purgation for
homicide was inadmissible in cases of kin-slaying, unless the
dying man forgave ; even then the slayer had to be exiled for
one year before he could be purged in his homeland : in cases
of wilful murder, purgation of the slayer in his own country
was impossible at any time, but was possible, if not compulsory,
abroad : in cases of manslaughter, purgation could take place
at home when the conditions of exile and of the ' appeasement '
of the slain man's relatives had been fulfilled. From such
regulations we can obviously infer that purgation was a symbol
of reconciliation, but not an expiation of guilt.

"« xiv. 22. 626. "» Infra, p. 150 ff. "• Bum. p. 123. »" Supra, p. 7.

120 POINE IN HOMER

The Homeric and the Tragic Erinnys

We must now contrast what we may call the Homeric
Erinnys with the Erinnys of post-Homeric times and with the
' tragic ' Erinnys. In the course of our discussion we hope
to suggest some reasons, more satisfactory, even if they be more
complex, than that which Miilleri^ gives, for the refusal of
the Erinnyes in the Oresteian legends of Attic tragedy to recog-
nise the purgation of Orestes until they assume the role of
Semnai Theai or Eumenides. In our view there are just two
reasons for this refusal : one is the fact that the purgation-
rites for homicide were a symbol of reconciliation, not with
ghosts, but with gods : the other is the fact that the Erinnyes
'^ of Attic tragedy are a complex product, reflecting the attitude
of the relatives of the slain at different periods, and from
different points of view, in the post-Homeric era. We shall
see later that there must have been several different variants
of the Oresteian legend. The act of Orestes would have been
approved or condemned according as social custom, at any
given epoch, recognised the right of Apollo to command or
to justify in advance the slaying of Clytaemnestra, or the right
of a State court to approve, or at least to condone, an act which
tribal society would have probably condemned.

We may thus summarise what we conceive to have been
the different stages in the evolution of the ' tragic ' Erinnyes.
We must distinguish clearly between (1) the Pelasgian Erinnys ;
(2) the Achaean Erinnys ; (3) the post-Homeric pre-Apolline
Erinnys, and (4) the Apolline or historical Erinnys. In
Homer there is a fusion of the first and second conceptions.
In Attic tragedy there is a most disheartening confusion of all
four conceptions. We must remember that the Erinnyes were
not ordinary deities possessing a stereotyped cult. Having
attained divinity largely through the personification or deifica-
tion of an abstract cultus-epithet, their nature was liable to
vary according to men's interpretation of the meaning and origin
of the epithet, and their forms could be freely fashioned by the
minds of poets and of legend- makers .^^^

(1) In regard to the Pelasgian Erinnyes, we have suggested
that they were divinities of different degrees of rank in the

"» Eum. p. 133. "» Infra, pp. 298 S., 307, 366 ff.

RELIGIOUS ASPECT 121

Chthonian religion. They did not visit their wrath on a
murderer if he paid the tribal penalty, or even on the slayer
of a kinsman, unless he remained in contact with the domestic
worship of his dead relative.^^ There was no * purgation '
for homicide : because homicide was not yet an offence against
the greater gods of the State. The exile or death of a murderer
or the payment of wergeld appeased, of itself, the Erinnys
of the slain : to refuse to accept wergeld was impossible, in
the organisation of the tribe.

(2) The Achaean Erinnys was an eclectic product. It was
not Homer who personified ^^^ the Erinnys because it was already
personified, though in that vague collective nameless manner
in which alone a cultus-epithet can be deified. The Achaeans
conceived the Erinnyes as gods. For them there are only
gods and men : there are no ghosts or abstractions in the
galaxy of supernatural beings. The Achaean Erinnys has
lost its connexion with ghost-terror, though it retains sufficient
traces of its Chthonian importance to be treated with con-
siderable respect. It is merely a subordinate deity which
executes the decrees of Olympian gods, but its association with
Zeus and the Moirae suggests the greater dignity which it
enjoyed in Chthonian religion. The connexion of the Erinnys
with curses is essentially Chthonian. All castes in Homer
use the ritual of swearing, but we cannot say how far the
Achaeans understood the ideas underlying the rite. The
curse of a father or a mother was particularly terrible in
the Pelasgian domestic religion. But we cannot suppose that
the Achaean respect for parents, or their dread of curses,
was as great or as profound as that of the Pelasgians. The
Achaean Zeus himself hurled to Tartarus his aged father
Kronos.1^2 Hence the Homeric references to parents' curses,
such as are found in the stories of the Achaean Phoenix
and the Achaean Meleager, indicate probably an assimilation
of Pelasgian ideas.^^ But the hterary heirloom which the
poet of the Achaeans bequeathed to Greece helped to beget
a false conception of the Achaean Erinnys in the minds
of later poets. The Achaean mode of blood-vengeance and
their desire of blood for blood caused later legend-makers to

^^° Coulanges, op. cit. pp. 125-6. "* Fee Harrison, Proleg. p. 215.

»" 11. vui. 479, xiv. 203. "* Supra, p. G7 ff.

122 POINE IN HOMER

attribute a veritable blood-tbirst to the Erinnyes of murdered
Achaeans.

(3) The post-Homeric pre-Apolline Erimiys — a divine being
whose nature can only be inferred by the logic of elimination
— reflects in a more emphatic manner the blood-thirst of the
slain. In the relaxation of Achaean military discipline which
followed the Trojan war : in the great invasions and migra-
tions, and in the demoralisation of clan-control, in a chaotic
society such as Hesiod describes,!^* where force is the only
law, and justice, virtue, honour, hospitality, loyalty and
fraternal love have vanished from the earth, the Erinnys
came to assume a diabolical aspect : murder was confused
with vengeance ; the anger of impotent avengers became im-
placable : and inexorable hatred was attributed to the Erinnyes
of the slain. At this period the gods were credited with an
approval of collective punishment ^^^ such as men themselves
practised. Nemesis became a god.^^^ Kronos is now said to
have devoured his children, and Ehea, their mother, inflamed
the Erinnyes against him.^^' The blood-offerings which from
time immemorial had been laid at the tomb of the dead were
now interpreted, not as a resuscitation of the dead for purposes
of necromancy or for the production of fertility, but, in the
case of murdered dead, as the satisfaction of an unquenched
thirst for blood. Curses became more frequent and more
terrible than in days when tribal law or military control
rendered recourse to religious sanctions less necessary. To
this period we attribute the prevalence of customs of which
some survived to historical times, while others soon became
obsolete : we refer to the custom of writing curses on tomb-
stones, the custom of planting a spear in the grave,^^ and the
custom of /iaa-%aXto-)tio9, or partial mutilation of a corpse.^^^
To those days, rather than to historical Greece, apply the words
of the Chorus in the Electra of Sophocles ^^ :

The curse hath found, and they in earth who lie

Are living powers to-day.

Long dead, they drain away

The streaming blood of those who made them die.

"« W. and D. 182-193 ; cf. Glotz, pp. 226, 227.

i« Hesiod, ib. 240. "« Hesiod, Theog. 223.

!»' Ib. 473. "* Glotz, p. 70 ; Dem. contra Everg. 69.

"» Glotz, p. 62 ; Harrison, Proleg. p. 70. "o 1420 fE.

RELIGIOUS ASPECT 123

In the Ion of Euripides ^^^ we are told that around the
Omphalos, or Sacred Stone, were figures of the Gorgons. One
editor i^^ of this play remarks that these figures suggested to
Aeschylus the dramatic forms of his Erinnyes. We are much
more inclined to beHeve this, than to suppose, with Miss
Harrison 1^3 or with Verrall,!** that Aeschylus invented the
dramatic form of the ' tragic ' Erinnys. We shall see later "^
that Aeschylus conceived the Erinnyes as Titans, as rebels
against Zeus and the Olympians. Whence came this rebel-
r61e of the Erinnyes ? The answer will, perhaps, be more
intelhgible if we explain the nature of the Apolline or
' historical ' Erinnys.

(4) We are not concerned here with the nature of the if^

cult of the Erinnyes in historical Greece. We seek rather to
describe the Erinnyes as they were moulded in the minds
of poets and of legend-makers in accordance with conceptions
of homicide which were modified by the Apolline doctrine of
* pollution ' and ' purgation,' and by the evolution of state-
control. We must postpone to later parts of our work the
details of our theory, and the more complete demonstration
of its validity. We will merely give here, as it were by antici-
pation, a summary of our conclusions. The doctrine of
' pollution ' which, as we think, came to Greece about 700 B.C.,
and which was gradually adopted in most Greek states under
the rule of the ' aristocracy of birth,' declared the homicide
to be an enemy to the gods of the State. His presence, in
his native State, or in the country of the slain, brought upon
the whole community plagues and pestilences and all those
evils which the primitive mind attributes to divine anger.
In our opinion, such a doctrine was incompatible with any
further continuation of the wergeld system which had
survived the age of chaos. The abolition of wergeld, at the
dictate of Apollo, the national prophet-god of ' aristocratic '
Greece, was a change which struck at the root of the great
tribal principle of retribution to the relatives of the slain.
Before the new doctrine acquired the prestige of traditional
custom, we should expect that a feeling of revolt would have
manifested itself in the sentiments of the old kindred of
the clans. Such a revolt would have been reflected, in legend,

»" 224. »" Bayfield. "* Prokg. p. 231.

*** Introd. to Eumenides, p. xxxvii ff. "* Injra, p. 298 £F.

124 POINE IN HOMER

as an attribute of the Erinnyes of the slain. This conception
of a revolting Erinnys will explain the Titanic role of the Furies
in Aeschylus, and their refusal to recognise the purgation of
Orestes by Apollo.

There was another factor, too, which may have helped to
give vitality and realism to the rebellious role of the ' tragic '
Erinnyes, especially in Euripides. We shall see^*^ that the
Apolline doctrine did not abolish every form of compensa-
tion. The relatives of a person involuntarily slain were
entitled to ' appeasement,' were, perhaps, permitted under
certain conditions to enter into what is known as ' private
settlement ' — though usually before ' appeasement ' a certain
period of exile was necessary. Now if, as some maintain,^*''
the ' appeasement ' depended entirely on the will of the
relatives, and if the relatives had to be unanimous in accepting
the gifts or presents which constituted ' appeasement,' it is
clear that one single relative could have extorted enormous
sums of money, or otherwise have compelled the manslayer
to abide in perpetual exile. We shall argue, later, that the
regular duration of exile for manslaughter was one year, and
that this custom implies the influence of local control, on the
part of judges or magistrates, directed against the right to
refuse ' appeasement ' on the part of a slain man's relatives.
Such a control would naturally have produced irritation and
dissatisfaction which, again, might have been reflected in
men's conception of the Erinnyes. We shall see that at least
one legend of Orestes conceived his deed as involuntary kin-
slaying. It was probably this legend which represented some
of the Furies as still implacable when the Areopagus trial had
declared Orestes ' not guilty,' or rather, immune from further
punishment.i^^

The main difficulty connected with the * appeasement ' of
the Oresteian Erinnyes arises from the fact that they are not
unanimous in their opinions about Orestes, and that some of
them — the Erinnyes of Clytaemnestra — are in violent conflict
with the official opinion of Apollo. At a later stage we shall
be in a position to explain this difficulty more clearly. At
present we will merely cite a law of Plato which is probably

"« Infra, pp. 143, 173 ff. "^ e.g. Glotz, op. cit. p. 316.

"8 Iph. Taur. 965 ; see infra, Bk. Ill,

RELIGIOUS ASPECT 125

based on the old traditions of patriarchal tribes (as they were
modified in course of time by Apollinism), and which forbids
the slayer of a kinsman who slays under the influence of
passion, ever to return to domestic communion with his kindred,
even though he may return to his native state and undergo
' purgation.' We refer to this law because it is possible to
interpret the act of Orestes, from Apollo's standpoint, not as
fully justified but rather as in a sense involuntary, being
extenuated by a religious command, as ' passion ' would have
extenuated it. Plato says ^^^ : ' If a father or a mother in a
passion kills a son or daughter ... let them be exiled for
three years and be " purged," but, on return, let the husband
be divorced from the wife and the wife from the husband . . .
and not dwell in communion with (the family) ... or share
with them in sacred rites.' Now, in the Apolline system it is
probable that the murder of a husband by his wife was of equal
gravity with kin-murder which was punishable with death.
Coulanges points out ^^° that the wife belonged to the domestic
religion of her husband, even though she did not belong to
his kindred. In the Pelasgian wergeld system husband and
wife are ' strangers ' in matters of homicide ; but in the
Apolline religious system they are members of the same hearth
and home. Moreover, in historical times failure to obey the
Apolline laws laid the delinquent open to a charge of impiety,
for which the penalty of death might be inflicted. There is a
suggestion of these legal viewpoints in Apollo's attitude when
he tells 151 the Erinnyes that Clytaemnestra, the murderess
of her husband, was justly slain, and that Orestes would have
merited death if he had not slain her ; and in the answer
of the Erinnyes concerning the act of Clytaemnestra, that
' her slaying was not kindred bloodshed ' ^^^ ; and that Orestes,
the slayer of his mother, must be pursued until he dies ! i^'
Now, Plato suggests that in the Apolhne code exclusion from
domestic religion attended the ' extenuated ' slaying of a parent
by a son, even when the dying parent formally ' forgave.' ^^^
Apart from the impossibihty of the supposition of a formal
* forgiveness ' of Orestes on the part of Clytaemnestra, it is

"» Laws, ix. ch. 9. "» Op. cil. p. 54.

"I Aeschylus, Eumenides, 213 ff., 017 ff. >" lb. 212, 608.

"' lb. 210, 230. *" Laws, ix. ch. 9.

126 POINE IN HOMER

clear that the Erinnyes of the ApoUine era would have naturally
objected to the presence of Orestes in the home of his fathers.
Thus they say, in the Eumenides ^^^ :

His mother's blood upon the earth he spilled.
Shall he in Argos dwell, his father's home 1
What phratry-altar can him e'er receive ?
What common lustral water can he share ?

But Orestes, fearing the Erinnyes of his father who naturally
and legally, in the Apolline system, pursue the relative who
fails to avenge, and who is * polluted ' almost equally with the
murderer, cries out, in the Choephoroe ^^^ :

The darkling arrow of the dead that flies

From kindred souls abominably slain

Should harass and unman me till the state

Should drive me forth, with brand upon my body.

So vexed, so banished, I should have no share

Of wine or dear libations, but unseen

My father's wrath should drive me from all altars.

Thus, the Erinnyes seem to reflect the conflict of opinions
and of sentiments which would frequently have arisen amongst
the relatives of the slain concerning the guilt of a kinsman
who had slain a kinsman. They also, unfortunately, suggest
the co-existence of conceptions of blood-vengeance which are
really to be attributed to different periods of time and to widely
different types of civilisation.

"8 655-660. "« 285 ff.

BOOK II
FROM HOMER TO DRAGON

CHAPTER I

SOCIAL AND LEGAL TRANSITIONS

Sectiok I : Political changes in post-Homeric times : fall of Achaean Empire
and its causes : post-Homeric migrations : Achaean survivals : the
Hesiodic age of chaos : tribal stability and decay : evolution of the Attic
State : aristocracy and democracy.

Section II : Religious and legal transitions in post-Homeric times : Asiatic-
Greek intercourse : compromise between Asiatic and Greek ideas adopted
in regard to homicide : origin of Apolline purgation-system : rise of
ApoUine influence : organisation of theocratic nobles : Apollo and
pollution : extradition : origin of the laws of Dracon : proofs of author's
theory from Greek legends, from Plato and Demosthenes : pollution
doctrine and wergeld : question of ' legality ' of ' private settlement '
for homicide in historical Athens.

Section I

Less than a hundred years ^ after the Trojan war, and some
time about the year 1100 B.C., the great and glorious rule of
the Achaeans over Greece came to an end. ' Greece,' as Leaf
puts it, 2 ' relapsed from the temporary union imposed upon
it by its rulers into its normal congeries of loosely coherent
cantons.' The Achaeans did not, of course, entirely disappear,
but they ceased to maintain that unified control and domi-
nation over Greece which they had enjoyed for two or three
centuries. The causes of this change are variously estimated.
Historical analogies, such as that of the Normans in England
and in Sicily,^ suggest in general the brief duration of such a
hegemony. ' The domination of a small mihtary caste over
a large subject population contains of necessity,' says Loaf,*
* the germs of its own destruction. . . .' ' The Iliad itself

1 Thuc. i. 12. " U. and U. p. 259. » Op. oil. p. 54. * lb. p. 255.

128 FROM HOMER TO DRACON

gives us vividly, in the portrait of Agamemnon, the inherent

weakness of all hereditary military despotisms The

time came . . . whether through the effort of the Trojan war
which had reduced their numbers, or through lack of moral
grit following on too long a tenure of power, when the Achaeans
had to cast in their lot with their former vassals .... the
group system resumed its sway and the Achaeans were drawn
into it.' 5 Eidgeway, arguing from analogous instances,
attributes the decay of Achaean vigour partly to climatic
influences, partly to the enervating effects of luxury and
power. In regard to this latter factor, he says ^ : ' It is a
known fact that the upper classes in all countries have an
inevitable tendency to die out . . . the dwindling of the
master races in the Mediterranean, whether they were Achaeans,
Celts, Goths, Norsemen or Turks, must be in part accounted
for by the mere fact that they formed in each case the upper
and ruling class, and could therefore afford to lead a life
of luxury which was the very bane of their race.' For
our part we are convinced with Leaf ' that ' an invasion
of Southern Greece by rude tribes from the north or
north-west swept away the Achaean civilisation after the
Homeric age ' ; that a military confederation of hereditary
monarchs and nobles, such as that of the Achaeans, could
not have lost its unified control if these inherent factors of
disintegration had not been supplemented by an invasion
from without.

0. Miiller ^ has pointed out that in Thessaly, the former
realm of Peleus and Achilles, there existed in historical times
three strata of social and political privilege : (1) the Thessalians,
post-Homeric immigrants, who ruled directly over the central
territory, including the towns of Larissa, Crannon, Pharsalus,
lolcus. (2) Perioeci or semi-independent vassals, such as the
Perrhaebians, the Magnesians, and the Phthiotian Achaeans,
who paid tribute and were bound to assist in war. (3) Penestae,
of Pelasgian stock, like the Helots of Sparta, who cultivated
the land and served in war, who had private rights but no
political privileges, who were, in a word, serfs, but not slaves.

» Op. cit. p. 259. • E.A.O. p. 405. ' P. 330.

' Dorians, vol. ii. pp. 64—6 ; see also Ridgeway, op. cit. p. 659, and Thuc.
ii. 101, iv. 78, viii. 3 ; Demosthenes, Phil. ii. 71, Olynth. ii. 20.

SOCIAL TRANSITIONS 129

He mentions, further,^ that the Achaeans of the north coast
of the Peloponnese remained in towns and fortified strongholds,
keeping entirely aloof from the natives ; they were still con-
querors here, though they had become vassals elsewhere. In
Sparta there appears to have been a mingling of Achaeans
and Dorians. Thucydides says ^° that here ' the few rule over
the many, having obtained sovereignty by victory in the
field.' That this victory was not very decisive is suggested by
the view, which is commonly held,ii that one of the two Eoyal
famihes of Sparta was Achaean. The Perioeci of Laconia were
always considered Achaeans i^; there were about a hundred
towns of Laconian Perioeci, both inland and on the coast ;
they paid tribute to Sparta, but they had a monopoly of trade
and commerce, and in the time of Nabis were liberated and
federated as independent states of the Achaean league.^^ The
Helots, of course, were serfs. They tilled the soil, and hved
in hamlets which made up the greater part of the town of
Sparta. They were probably Pelasgians, though they are called
Achaeans by Theopompus.^* Similarly, in Argos and in Corinth
there are traces of pre-Dorian peoples who can probably be
regarded as including some remnants of the Homeric Achaeans.^^

Leaf suggests ^^ that the Dorians may have followed methods
of conquest similar to those of the Achaeans, yet he has no
doubt that they were identical in social organisation with the
Pelasgians. 1'^ ' Hellenism as we know it,' he says, ' is founded
on tribal distinctions, beginning with the great racial divisions
of Dorian, Ionian, and Aeolian in the wide sense — the general
name for all which did not belong to the other two ; — passing
thence to the local state, Athenian, Spartan and the rest.
Each of these again is divided internally by tribe, clan, and
family systems of the most complicated nature. Upon these
ramifying subdivisions is based the poHty, and largely the
rehgion, of classical Greece.'

This statement is of first-rate importance for our theories
concerning post-Homeric homicide. It means, in effect, that,
in spite of confhcts and migrations, the dominant Hellenic

» Op. cit. ii. 71. 10 iv. 126.

" E.g. Holm, H.O. i. 175 ; Gilbert, G.C.A. p. 4 ; Herod, v. 72, vl. 51.
" Paueanias, iii. 22. 7. " MuUer, op. cit. ii. 18-23.

" AthenaouB, vi. 265 ; Miiller, op. cit. p. 31. ** Miiller, op. cit. ii. 54-8.
" Op. cit. p. 334. " lb. p. 250.

130 FROM HOMER TO DRAGON

or post-Homeric Greek society was based on clan and tribal
organisations similar to those of the early Pelasgians. The
militarist Achaeans of the Iliad and the Odyssey must then be
regarded as a solitary accidental ephemeral phantom which
crossed the stage of Grecian history never to return. The
Achaeans who survived the invasions either remained in
isolated groups as in Achaea and in South Thessaly, where
they seem to have preserved for a time their military character/^
though they may, in course of centuries, have evolved the
mechanism of clan life : or they became subject Perioeci, and
were rapidly merged in tribal organisations, or they were
accepted as partners in government, as at Sparta, at Argos, at
Corinth, and at Sicyon, and, like the Eoman Patres minorum
gentium, developed along the lines of tribal society. Their
pecuHar Homeric character disappeared : they were Hellenised
— which is to say, with Leaf ,i^ that they were ' drawn into ' the
' group- system,' which, after Homer, * resumed its sway.'

It was perhaps because of special circumstances that
Sparta developed along peculiar Hnes of a quasi- Achaean and
non-Hellenic kind. Thus, Miiller holds ^° that the Spartans
represent a continuation of the heroic age, a system of miHtary
rule over agricultural classes. So Holm ^^ says that ' The
Spartan monarchy was a continuation of that of the Homeric
age, only its authority was more strictly defined and became
gradually more limited.' Grote,^^ criticising the opinion of
Miiller, who holds that the Spartans were typical Dorians, main-
tains that the ' institutions of Sparta were peculiar to herself,
distinguishing her not less from Argos, Corinth, Megara . . .
than from Athens or Thebes.' Crete, he says, was ' the only
other portion of Greece in which there prevailed institutions
in many respects analogous, yet still dissimilar.' The creator
or inventor of the peculiar Spartan character, was, he thinks,
Lycurgus. We consider these opinions much more probable
than that of Gilbert,^^ who believes that the three Dorian tribes,
known as Hylleis, Dymanes, Pamphyloi, existed in the earlier
days, at Sparta, as a social organisation. The reference of
Demetrius of Scepsis (about 100 b.c.) to the existence of twenty-
is Leaf, p. 315 ; Miiller, Dorians, ii. 71.

" Op. cit. p. 259. " Op. cit. vol. ii. p. 18. " E.G. i. 180,

« E.G. vol. ii. chap. 6, p. 262. 2* Op. cit. pp. 10, 40.

SOCIAL TRANSITIONS 131

seven phratries and nine tribes at Sparta, gives, of course,
no basis for assuming their existence in post-Homeric times.
We have a special reason for emphasising the pecuHarity of
Spartan institutions. A sohtary reference in Xenophon ^-i to
a penalty of perpetual exile for involuntary homicide at Sparta,
in contrast with the well-known penalty of temporary exile
at Athens, has been taken to justify the opinion that the
. murder-laws of Athens were pecuHar to herself. But, in our
view, the pecuHarity of Sparta ^s miUtates against the validity
of such a conclusion. We hope to prove more clearly at a
later stage that this conclusion is false.

The social evolution of post-Homeric Boeotia is a subject
on which a wide diversity of opinions appears to exist.
Kidgeway ^e thinks that the Boeotians were Achaeans : Leaf ^7
supposes that they were Thessalians : Miiller ^s believes that
they were Pelasgian Aeohans driven out of the land which
was afterwards called Thessaly, by invading ThessaHans.
Leaf argues ^^ that the Achaeans did not occupy Boeotia at
the time of their domination in Greece, but we do not see why
they may not have occupied that district at a later date. Bury =^"
contrasts the ' Boeotian conquerors ' with the ' older Greek
inhabitants ' of Boeotia : Hogarth ^^ distinguishes between
Aryan Boeotians and the non- Aryan Asiatic Cadmeans of
Thebes. We cannot attempt to decide between these various
opinions, and, fortunately, it is not necessary that we should
do so. We have indicated the probable fate of the Achaeans
after the fall of Troy, and for the rest we may be satisfied with
the description of Thucydides.^^

' The country which is now called Hellas was not,' he says,
' regularly settled in ancient times. The people were migratory
and readily left their homes whenever they were overpowered
by numbers. There was no commerce . . . the several
tribes cultivated their own soil just enough to obtain a main-
tenance from it. They were always ready to migrate. The
richest districts were most constantly changing their in-
habitants.' Thucydides mentions, as rich districts, Thessaly,

" Anab. iv. 8. 25 ; irifra, p. 173.

" See Aristotle, Pulitics, 1271 b 22 ; Strabo, x. 481.

" E.A.a. p. 621). " Qp_ cit. p. 339. «« Dorians, ii. 05. »» P. 52.

^o H.G. p. IGl. " Life of Philip, p. 30. »» i. 2 (Jowett).

132 FROM HOMER TO DRAGON

Boeotia and the Peloponnese (except Arcadia). Attica, how-
ever, of which the soil was poor and thin, enjoyed, he says,
a long freedom from civil strife and retained its original in-
habitants. Hence ' . . . the Athenians ^^ were the first who
laid aside arms and adopted an easier and more luxurious
mode of life.' Again he points out ^* that ' . . . Even in the
age which followed the Trojan War, Hellas was still in a state
of ferment and settlement and had no time for peaceful growth.
The return of the Hellenes from Troy after their long absence
caused many changes ; quarrels too arose in every city, and
those who were expelled went and founded other cities . . .
a considerable time elapsed before Hellas became finally
settled . . . after a while she recovered tranquillity and began
to send out colonies.'

Glotz ^5 paints a lurid picture of the homicide customs of
what he calls the Middle Ages of Hellenism (Le Moyen Age
hellenique). ' Passe, le temps ou toutes les forces du groupe
se coalisaient spontanement, instantanement, contre toute
agression, d'ou qu'elle vint. Le meurtrier riche et puissant
n'avait plus a craindre un aussi grand nombre de vengeurs :
il n'etait plus contraint de fuir par un aussi formidable souleve-
ment de haines. . . . Le meurtrier d'un parent pouvait avoir
des accomplices ou trouver des complaisants parmi ses plus
proches. . . . Ainsi les homicides commis a I'interieur d'une
famille etaient moins surement punis a I'epoque ou
s'organiserent les tribunaux de I'Etat que dans la periode
precedente, ou la justice du <yevo<i avait encore toute son
efficacite. . . . H y eut un moment ou vraiment, dans certains
cas, le parricide n'avait rien k redouter d'aucune justice.' The
references which Glotz here makes to the control exercised
by the clan in cases of kin-slaying are quite in harmony with
our theory of the nature of Pelasgian homicide customs, but
they are quite inconsistent with Glotz's general hypothesis
as to the nature of Homeric blood-vengeance. This incon-
sistency is to be explained by the absence of that distinction
between the Achaean and the Pelasgian attitude to homicide
which we have made the basis of our reasoning. Moreover,
Glotz is not quite sound in supposing that the age of chaos
began about the year 800 b.c. The date of Hesiod is now

33 i. 6. 34 i_ 12. " Op. cit. p. 225 ff.

SOCIAL TRANSITIONS 133

generally regarded as approximately 850 b.c, and the condition
of things which he depicts must have existed for a considerable
time before that date. It was not a temporary or spasmodic
condition of things. Substituting, therefore, the dates 1100
B.C.-700 B.C. for Glotz's figures 800 B.C.-600 b.c. as the time-
limits of the age of chaos, we may accept as trustworthy
Glotz's description of the Dark Ages. He quotes a Hesiodic
passage to which we have already called attention.^^ ' Eien
que desunion de pere a enfants, d'hote a bote, d'eraZ/jo? a
eratpo? : plus d'amour fraternel, comme jadis. Vite on jette
I'opprobre sur les parents qui vieillissent : on leur parle un
langage dur et insultant, impie, sans souci de la vindicte
divine : on refuse a la vieillesse de parents les vivres qu'on a
regus d'eux dans I'enfance : car on ne connait que le droit
de la force. . . . Pas d'egards pour la bonne foi, la justice,
la vertu : au crime et a la violence tons les honneurs.' Into
this chaotic condition, he says,^' came the new reHgious
doctrine of homicide as a pollution. ' La reUgion force la
societe h intervenir dans les affaires de sang intrafamihales,
et la societe agit non pas contre le coupable mais contre la
famille qui refuse d'agir. . . . Une idee nouvelle se fait jour
dans I'esprit des Grecs, I'idee de la souillure qui s'attache h
I'homicide ... la purification du meurtrier n'est pas une
coutume primitive . . . n'etait pas connue a I'epoque
homerique.'

In many such passages Glotz implies that in the Hesiodic
age there was a general weakening of tribal authority and of
clan-law, a break-up of the power of control exercised by
the kindred, the phratry, and the tribe over their members,
in cases of homicide, and in other matters.^^ Yet when Glotz
comes to discuss the Solonian legislation, we find him still
speaking ^^ of an anti-clan pohcy, of the desire of Solon to
weaken the clans. ' Solon,' he says, * fut nomme par la
confiance de ses concitoyens arbitro et legislateur. Pour
remplir cette double mission, il lui fallut de toute n^cessite
affaibhr les jivr) dans leur action exterieure et leur constitution
intime. . . . L'esprit meme de la constitution solonienne est
oppose au classement des citoyens par yevr]. L'Etat so met

" Works and Days, 182-193 ; supra, p. 122. " Op. cit. p. 228.

" See also Coulanges, op. cit. p. 336 ff. " I'p. 325-327.

134 FROM HOMER TO DRAGON

directement en rapport avec les individus. Les groupes, il
ne les detruit pas, il les ignore. . . . Effet indirect des lois
constitutionnelles, le demembrement du 76^0? est le but
immediat et constant des lois civiles . . . cette signature de
Solon, c'est I'hostilite envers les solidarites des vieux temps.'
Again, he says *° that at the beginning of the sixth century b.c.
' At a time when all cities had equally suppressed tribal or
clan responsibility {la responsabilite familiale) in common
law, Athens surpassed all others by the vigour of the blows
which it struck at the internal organisation and the civic
action {V action sociale) of the clans.' How can these apparently
different view-points be reconciled ? Can we express the
facts so that the apparent discrepancy will disappear ?

We have seen that in post-Homeric times the long sub-
merged group-system of tribal society resumed its sway.
Though the wars and migrations of the period must for a
time have weakened its power, yet ultimately, as Thucydides
says, ' Hellas recovered tranquillity, and began to send out
colonies.' *i The new doctrine of Apollo, which regarded
homicide as a ' pollution,' was, we think, adopted about the
seventh century, which was pre-eminently the period of
Greek colonisation. Henceforth the homicide was conceived
as an enemy not merely of the ghosts of those whom he had
slain but also of the gods of the new States which had evolved
out of chaos through synoekism. But Attica, almost alone
of all Greek States, was immune from the chaos of migrations
and invasions and retained for the most part its original
inhabitants. Therefore Attica, more than anv other Greek
State, required, for its political unification, a more strenuous
law-making, a more violent attack on the civic action of
the clan.

Yet we cannot suppose that the clans and tribes of the
group-system were destroyed in Attica any more than they
were in other parts of Greece. All through the historical era
clans and tribes continued to exercise limited powers and
jurisdictions ; the old ties of kindred and of neighbourhood
were maintained under the form of religious corporations
long after the group-system had lost its political power. All
this is merely to say that the old aristocracy of birth was

*o P. 397. " i. 12.

SOCIAL TRANSITIONS 135

replaced by plutocracy and democracy. The various stages
in this transition will be made clear if we give a brief sketch
of the political evolution of Attica, a sketch which is all the
more necessary because of the analysis which we shall have
to give, at a later stage, of blood-vengeance in Attic tragedy.

Evolution of the Attic State

We need not allow ourselves to be detained by the obscure
and conflicting legends which centre round the birth of the
Attic nation. Coulanges ^^ refers to the traditions concerning
local kings of Attica before the time of Cecrops. Pausanias
refers to a kind of religious amalgamation which was doubtless
the concomitant of political synoekism : ' Sacred to Athene,'
he says, ' is all the rest ^^ of Athens and similarly all Attica ;
although they worship different gods in different town-
ships, none the less do they honour Athene generally. He
points out that four villages at Marathon were still in his
time united in a local worship of Apollo, and that legend
attributed to Cecrops a federation of Attica into twelve
different states.'** While Coulanges accepts the legend which
attributes to Theseus the political unification of Attica, he
thinks *^ that Plutarch *^ and Thucydides *' are in error in
supposing that Theseus aboHshed the local prytanies and
magistracies. * If he attempted this,' he says, ' he certainly
did not succeed ; for a long while after him we still find the
local worships, the assembhes, and the kings of the tribes.*

In theory the four tribes of ancient Attic society were
Ionian tribes which, in the days of oligarchic power, imposed
their will upon the rest of Attica. Miiller^^ points out that
there is a distinct change in Attic mythology when we come
to the Ionian Kings, Aegeus and Theseus. But Leaf thinks
it possible that the adoption of the four Ionian tribes in Attica
does not represent an Ionian conquest, but was due to the
fictitious self-inclusion of Attica in the Ionian race.*® Bury
holds ^® that ' the statesmen who united Attica sought their
method of organisation from one of those cities of Asia Minor

" Op. cit. pp. 171-2. " i.e. apart from the Erechthoum (i. 26).

♦* Coulanges, pp. 171-2. " P. 173. " Theseus, 24. " ii. 15.

«« Dorians, i. p. 256. " Op. cit. p. 332. " Op. cit. p. 169.

136 FROM HOMER TO DRAGON

which Athens came to look upon as her own daughters ' :
that the names of the four Attic tribes, ^^ Geleontes, Aigikoreis,
Argadeis and Hopletes, were borrowed from Ionian Miletus :
and that Attica was united into a single state in the period
of what is known as the life-regency (1088 B.C.-753 b.c.)
] ^ The tribal continuity of Attic life is most clearly indicated
in the excellent analysis of F. de Coulanges. The people
of Attica, at the birth of the Attic State, were governed, he
says, ^2 by noble clans called Eupatridae who had abolished,
about 1050 B.C., the power of an hereditary monarchy. Some
three hundred years later, these same noble clans limited the
power of the life-regent (a member of the royal family) by
insisting on an election being held every ten years. About
700 B.C. annual election was in force, and the royal family
was represented by only one member in a government of
nine archons elected from the Eupatrid caste. These
Eupatridae, who dwelt in scattered groups in Attica, ^^ created
a united Attic State when they formed a confederation for
the purpose of defence and common worship. But the absence
of sustained danger from abroad and the development of
mutual rivalry and internal feuds diminished, at length,
their pristine vigour.^* Non-privileged classes, herded together
in towns and hamlets, saw in Eupatrid weakness their own
opportunity.^^ The introduction of coinage in the seventh
century and the expansion of trade and commerce led to the
presence, in Attic ports and cities, of a new nobility of wealthy
merchants who could not ^^ aspire to enrolment in the exclusive
Eupatrid tribes, who could not be permitted to worship at the
altars of tribal gods, who were not, in fact, recognised as a
functional element of the civic organism. Naturally, these
merchants imported new worships ; they seized on Oriental
cults which, Uke Buddhism, excluded no caste. Conscious of
the barriers which confronted them, they often had recourse
to armed revolt.^' The conflict ended at length upon the
appointment of a legislator who was expected to revise and
to codify the laws. Dracon, the first great Athenian legislator,
certainly codified the laws, or some of them at least. But

" See, further, article J.H.S. xl. Part ii. p. 202, and Pollux, viii. 109-111.
" Op. cit. pp. 320 fE. " jjy p 331, 64 75 p 333.

" Ih. pp. 345-6. " Ih. p. 365. " lb. p. 369.

SOCIAL TRANSITIONS 137

being too loyal a Eupatrid, he failed to remove the grievances
of plebeian nobiles. Solon, a Eupatrid by birth, had the
advantage of being a merchant by occupation. ^^ He first
attacked the large domains of the Eupatrids and their pohtical
power.^^ He assailed their monopoly of judicial authority ^^
by setting up a timocratic, if not a plutocratic, Areopagus,
as an alternative to the aristocratic Ephetae courts, and by
the institution of popularly elected Heliastic juries which
possessed at first, appellant, and later, universal jurisdiction
in Attic law. But it was only in the time of Cleisthenes,
about 510 B.C., that the four patriarchal tribes of Attica were
removed from the pedestal on which they had stood so long
and which was the basis of their pohtical existence. Ten
new tribes were created, on an entirely novel principle of
local segregation : new hero-cults arose : new priests offered
sacrifice, who were liable to annual election : and the four
Ionian tribes ceased to have any political meaning.

But they did not, therefore, cease to exist. ^^ Obscure
and hidden, they still lived on. Clan-courts still sat to decide
disputes regarding property, adoption, and inheritance.'^^
In the time of Demosthenes ^ such courts imposed fines
for the embezzlement of property. Homicide, in particular,
which from the eighth century onwards assumed a ' rehgious,'
which is to say, a theocratic or patriarchal aspect, was in
historical times ' purged ' and in certain cases * judged ' by
the Ephetae and the Exegetae who were chosen ^ from Eupatrid
famihes.

We shall now proceed to consider the advent in Greece
of that new religious doctrine which for the first time declared
the murderer to be a sinner against the gods and debarred
him for ever from his country and his home.

" Op. cit. p. 373. " lb. p. 354. «» See infra, Bk. II. ch. iii.

«i See also Gilbert, O.G.A. (Eng. trans.), p. 350.

" Glotz, op. cit. p. 328. •' Coulanges, op. cit. p. 158 ; supra, p. 88.

" See PoUux, viii. 111.

138 FROM HOMER TO DRACON

Section II

Eeligious and Legal Transitions

The evidence of mythology and archaeology points so clearly
to frequent and continuous intercourse between the early
Greeks and their non-Aryan neighbours of Egypt and Asia
Minor that up to quite recent years it was possible to maintain
that early Greek civilisation was derived from African and
Asiatic sources. Thus — to quote a writer easily accessible —
Mahaffy ^^ held that to the Phoenicians and to the Egyptians
is to be traced * the prehistoric culture of Argos, Mycenae,
Orchomenus and Crete.' There are, he thought,®^ Oriental,
Assyrian and Syrian influences in Mycenaean remains. Egypt,
especially, was regarded as the home of wealth and culture.^'
It is only in more recent years when the explorations in Crete
have shown, for example, that ' compared with the palace
of Cnossus, the palaces of the Pharaohs were but hovels of
painted mud,' ^^ that the early Aegean culture came to be
regarded as derived from an indigenous Cretan civiHsation,
and Minoans received the honour which was previously
accorded to the Phoenicians. It is now recognised that the
great period of Asiatic intercourse with Greece was the post-
Minoan period. The fall of the Minoan thalassocracy opened
the Aegean Sea to Asiatic traders. * The Phoenicians,' says
Bury,^^ * had marts here and there on coast or island, but there
is no reason to think that Canaanites made homes for themselves
on Greek soil. . . . Their ships were ever winding in and out
of the Aegean isles from north to south, bearing fair naperies
from Syria, fine wrought bowls and cups from the workshops of
Sidonian and Cypriot silversmiths, and all manner of luxuries
and ornaments : this constant commercial intercourse . . .
is amply sufficient to account for all the influence that
Phoenicia exerted upon Greece. . . . The briskest trade was
perhaps driven with the thriving cities of Ionia, and the
Phoenicians adopted the Ionian name ... as the general
designation of all the Greeks.' In Ionia, Bury thinks,'^ occurred

'* Social Life in Greece, pp. 16-18. ** Greek Civilization, p. 32.

«^ Ih. p. 41. •» Hall, History of Near East, p. 47.

«» E.G. p. 77. " Op. cit. p. 78.

LEGAL TRANSITIONS 139

that fusion of Semitic consonants with Greek vowel symbols
which produced the Greek alphabet. In close contact with
the Ionian Greeks were the Lydians, who were the first people
to coin money (about 700 b.c.'i) and who transmitted the
discovery to the Greeks and to other Asiatic peoples. Need-
less to say, this discovery was of great commercial importance,
and incidentally rendered possible an accumulation of non-
landed wealth. Now Greek coinage, as Bury points out,'^
' was marked from the beginning by rehgious associations,
and it has been supposed that the priests of the temples had
an important share in initiating the introduction of coinage.
It was in the shrines of their gods that men were accustomed
to store their treasures for safe-keeping. . . . Every coin
which a Greek State issued bore upon it a reference to some
deity.'

From these facts alone, apart from general considerations,
it will be evident how easy and natural it was that the Greeks
should also have received religious inspirations from their
Asiatic neighbours.

It is very significant that the first mention, in Greek htera-
ture, of the religious purgation of homicide occurs in an epic
poem, the Aethio'pis, by Arctinus of Miletus, "^^ who lived in
the last half of the eighth century (750-700 b.c). In this poem
we are told that Achilles, having slain Thersites because he had
ridiculed his tears for the death of an Amazonian queen, went
to Lesbos to be purified. Glotz points out that the presence
of Achilles at a sacrifice before his purgation implies that the
doctrine was not, at that time, fully developed or understood.

Again, it is very significant that Herodotus '* attributes to
the Lydians rites of homicide-purgation which, he says, are
almost the same as those which the Hellenes used. According
to the historian, there came to Croesus, King of Lydia, about
the year 550 B.C., * a man, in wretched phght, whose hands
were not clean, a Phrygian by race, of royal blood.' ' Having
reached,' he says, ' the house of Croesus, this man asked to
have himself purified according to the customs of the place, and
Croesus purified him.' After the ceremony Croesus asked his
visitor who it was that he had slain : the stranger replied that

" Op. cit. p. 113. " lb. p. 114.

" Seo Glotz, op. cit. pp. 231 £f. j^Kinkol. Epic. gr. fragm. i. p. 33.

'« i. 35.

140 FROM HOMER TO DRAGON

he had involuntarily slain his. brother and that, in consequence,
he had been expelled by his father and deprived of all his
privileges. We shall see presently '^ that involuntary kin-
slaying could be purged abroad, in the Greek purgation-
system. We cannot conclude, because Croesus made no
inquiries prior to the ceremony as to the details of the deed
of blood, that therefore all kinds of homicide could be purged
amongst the Lydians. The very fact that the slayer requested
purgation would, in the religious atmosphere of the time, have
been taken as sufficient evidence that his deed was at least
capable of being purged.

The conception of homicide as a pollution or religious offence
is known to have existed at an early date amongst the Hebrews,
and we may hazard the conjecture, though we find no express
reference to the fact, that a system of purgation was practised
by the Hebrews, at least for minor degrees of guilt. The
penalties exacted for homicide amongst the Hebrews, as
amongst the Eomans, were much more severe than those which
prevailed amongst the Greeks. We have seen ''^ that in the
normal operation of homicide-purgation no religious ' cleansing '
was valid while the civic penalty remained unpaid. In Eoman
law, death was the penalty prescribed for murder and for man-
slaughter : but for justifiable or justifiably accidental homi-
cide'^' there was no punishment, and religious expiation could
immediately take place. Amongst the Hebrews, a similar
penalty was exacted for murder and manslaughter. ' Whoso
sheddeth man's blood, by man shall his blood be shed ' is the
general principle "^^ ; and again : * He that smiteth a man so
that he die '^ shall surely be put to death : if a man slays
presumptuously with guile, take him from my altar that he
may die.' ^^ For accidental or justifiable slaying, however, we
find that a mode of escape from the avengers of blood was pro-
vided : ' If God delivers a man into his hands,^^ I will appoint
thee a place whither he shall flee ^^ . . . and ye shall not take
compensation for him that is fled to the City of Eefuge that he
should come home before the death of the high-priest. So ye

" Infra, p. 151. '« Supra, p. 118.

" Cicero, Top. 17 ; Miiller, Eum. p. 107.

'• Genesis ix. 6 ; Numbers xxxv. 11-34. '• I.e. without intent to kill.

*' EoMius xxi. 12. *^ I.e. if one slays by accident. ®^ Exodus xxi. 12.

LEGAL TRANSITIONS 141

shall not pollute the land wherein ye are.' ^^ We may assume,
with some degree of probabihty, that in this class of homi-
cide, some form of purgation ceremony was customary. We
mention the Hebrew custom here merely to show the general
trend of Asiatic thought in regard to homicide.

We may, therefore, regard as highly probable the view
which connects the origin of the post-Homeric Greek notion of
homicide as a ' pollution ' with the Semites and Asiatic peoples.
Glotz merely states his view of this matter without giving
reasons in support of his statement.^* ' Alors,' he says, ' les
Grecs prendront aux Semites les rites dramatiques de leurs
ceremonies purificatoires.' There were, however, some impor-
tant differences between the original Semitic doctrine and the
matured Greek adaptation of it, as will be evident from a brief
explanation of the precise nature of the Greek ' pollution '
doctrine.

The Greek Pollution Doctrine

At first, we think, there came to Greece a vague rumour
of the doctrine through the medium of the Cyclic poets. Greek
priesthoods in Asia had already adopted it because of their
proximity to Asiatic races who had developed it. But originat-
ing, as it did, in the centralised theocracies which then existed
amongst these races, the doctrine could be accepted only in a
modified form by the Greek people whose predominant political
institution was the city-state.

Traces of the doctrine in its early phase, prior to its
formal adoption in Greece, appear in the story of Alcmaeon.
Thucydides,^^ in his account of the islands known as the
Echinades, in western Greece, which were gradually, owing to
the silting up of the river Achelous, becoming part of the main-
land, mentions the following legend : ' when Alcmaeon, son of
Amphiaraus, was wandering over the earth after the murder
of his mother, he was told by Apollo that here he should lind a
home, the oracle intimating that he would never lind deliver-
ance from his terrors until he discovered some country which
was not yet in existence and not seen by the Sun at the time
when he slew his mother ; there he might settle, but the rest of

•' Numbers xxxv. ; cf. Dtuter. iv. 41, Joshua xx. 1-9.
" Op. cit. p. 153. " u. 102 (Jowett).

142 FROM HOMER TO DRAGON

the earth was accursed to him. He knew not what to do till
at last, as the story goes, he espied the deposit of earth made by
the Achelous, and he thought that a place sufficient to support
life must have accumulated in the long time during which he
had been wandering since his mother's death.' This conception
of pollution is very Semitic, and reminds us of the Biblical
allusion to Cain ^^ as ' cursed from the face of the earth,' but it
is also to a certain extent Greek, since there was not in historical
Greece any purgation for wilful matricide or, if we may trust
Plato, ^' for wilful kin-slaying. In the Apolline era Greek kin-
slaying was punished, according to Plato,^' by death, and it was
so punished in a later Israelite penal code. In the Pelasgian
era, kin-slayers, condemned to perpetual exile, were often
compelled to wander for years and years. Their wandering
mast have been almost proverbial, yet its meaning was under-
stood. But the picture of a kin-slayer wandering till he finds
an unpolluted piece of earth can only be attributed to the
fanciful interpretation of a novel religious law which as yet was
not fully comprehended. We have already discussed ^^ Miss
Harrison's views in regard to Bellerophon and the ' plain of
wandering.' ApoUodorus tells us ^^ that Bellerophon was
puriJfied by Proetus. Miss Harrison says ^^ 'in those old days
he could not be purified.' We agree that he could not be purged
in Homeric times, because the rite was unknown : if in later
times he was said to have been purged, it became necessary to
suppose that the crime which he committed was involuntary.
But Homer says nothing of Bellerophon's kin-slaying.^i It
was probably an invention of later minds intended to explain
the Homeric reference to the ' Aleian plain ' which was inter-
preted as ' the plain of wandering,' after the analogy of the
' wandering ' in the legend of Alcmaeon.

We hope to show presently that this rehgious doctrine, which
declared in effect that homicide brought down the anger of the
gods upon the community which neglected to punish it, took
definite shape in historical Greece under the aegis of Apollo
and his priesthoods and Amphictyonies, In our view, the final
form of the doctrine was a fusion or compromise between the
severer Semitic conception, on the one hand, and, on the other,

®' Genesis iv. 11-15. ^' Laws, ix. ch. 12. *' Supra, p. 110.

«» ii. 2. 3. »» Proleg. p. 221. »i II. vi. 155-205.

LEGAL TRANSITIONS 143

the tribal traditions of Greek homicide-customs, weakened
and disorganised, as they were, in the Hesiodic age of chaos,
but unmistakably local in their outlook, and reflecting still the
attitude adopted by the relatives and attributed to the victim.
The Apollo of the Greek race could not accept in its entirety
the Asiatic doctrine of pollution but had to modify it at the
bidding of customs which were sanctified by time. As we
believe that the Draconian homicide-laws were merely an
eclectic codification of the seventh-century unwritten laws of
the aristocracies of birth, it would clearly anticipate our whole
account of the Draconian legislation if we were to explain at
this stage the detailed operation of the ApoUine pollution
system. We shall then give here only an outline of the Asiatic-
Greek compromise which we believe to have arisen in the
eighth or seventh century b.c.

In the first place wergeld was abolished, as amongst the
Hebrews, for wilful murder. This was the greatest concession
which the new doctrine extorted from tribalism. The new
provision which declared the property of the wilful man-slayer
confiscated to the State when the slayer had gone into perpetual
exile we attribute to a third factor — the evolution of State
power : wergeld in the strict sense was also abolished for
manslaughter, but the slayer was allowed and commanded,
after a period of exile, to ' appease ' by ' presents ' the relatives
of the slain. In this we can clearly detect a concession wrung
from what we call Apollinism by the tribes. It is usually held ^"
that in the case of manslaughter, and Glotz holds ^^ that even
in the case of murder, ' private settlement ' without trial was
legal in historical Athens. We hope to show ^* at a later stage
that these opinions are incorrect, except in regard to one special
and rare contingency.

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 bo ' 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 homi-
cide-guilt led to a pecuhar compromise, by which Apollo and

•» MuUer, Euin. p. 92 ; Smith, Did. Ok. Ant. s.v. (p6vos.
•3 Op. cit. p. 314. »« Injra, p. 173 ff.

144 FROM HOMER TO DRAGON

other State gods consented to accept the sacrifice of a surrogate
victim, when the atonement which the law prescribed had been
paid, the actuahtyof the atonement being symbolised, as it were,
by this Chthonian sacrifice of * reconciHation.'

Since Greece, mihke 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 centrahsed 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 Hable to art/xLa, — he must be
degraded from citizenship : if he waits for the verdict which

LEGAL TRANSITIONS 145

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. Ketribution 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 ^^ 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 ^® that this immunity in foreign states of exiles
who were guilty of wilful murder in their home-land was due to
occasional treaties of davXta between Greek States, We shall
see that such immunity was more probably derived from Greek
extradition law, and such law implies international authorisa-
tion. It was precisely because such laws could be made and
enforced that Greek homicides required no * cities of Eefuge.'
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 KaddpcnoL Oeoi.
We have argued ^' 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

»* Dem. in Aristoc. 632, 634. »« Oj). cit. p. 218 ; injra, p. 166.

" Supra, p. 122 ff.

146 FROM HOMER TO DRAGON

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.,^^ 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 ^^ : 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. ' Forgive-
ness ' 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 ^^^ : 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 con-
siderations 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. ' Kelease ' 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 ^^^ : * private settlement ' was permitted. Whenever
therefore a trial for involuntary homicide took place in his-
torical Greece, we must assume either that the accused denied
the guilt and refused * private ' compensation or that the dying

" See infra, ch. ii.

•» See infra, p. 181, and Dem. in Androtion. 593.

100 Dem. c. Pantaen. 893, 59 ; infra, p. 176 ff.

101 Lysias, c. Agor. 41, 78.

LEGAL TRANSITIONS 147

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 ^^^ 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
a^vXa^ia which laid the employer open to a charge of man-
slaughter. 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 ^"^ 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.^^

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,i°^ in regard to kin-slaying : ' The relative of
deceased as far as cousins, male and female, who does not

"* 1-6. los 5e.

»<»* e.g. Rep. ii. 379D-383. "» Laws, ix. ch. 11.

148 FROM HOMER TO DRAGON

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 deter-
mining 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^"^ 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 ' i°' to induce the Furies of
Clytaemnestra to become Eumenides. Hence the Furies say
of Orestes ^^^ :

' His mother's blood upon the Earth he spilled.
Shall he in Argos dwell — his father's home ?
What phratry-altar can him e'er receive ?
What common lustral water can he share ? '

Hence, also, as Glotz points out,i°^ the preliminary plea on
oath of the accuser and the accused, in homicide cases, was
taken before the altar of the Erinnyes or the Semnai Theai ;
and the defendant who was acquitted of murder by the Areo-
pagus, as well as the returned exile who had paid the penalty
of involuntary homicide, offered sacrifice there.

lo* Laws, ix. ch. 9. "» Aesch. Eum. 886. "8 /j. 655, 660.

"» P. 155; Dinarchus, 47; Antiphon de Caed. H. 11 ; Pausan. i. 28. 6.

LEGAL TRANSITIONS 149

The Eitual of Homicide-Purgation

In regard to the ceremonial of purgation by which the
slayer, in certain circumstances, was ' cleansed ' or purified,
we have already "^ pointed out what we consider to have been
the origin of the rite ; and we have shown how the analogies
which existed between such a ceremonial and the general
Chthonian sacrifices of ' expiation,' * placation,' and ' aversion '
caused these rites to be confused with one another in the
minds of ancient and of modern writers. The ceremonial of
homicide-purgation appears at first sight so simple and
elementary in character that we would be inclined to assume
a 'priori that it could have been duly performed by any ordinary
person. But, in fact, we shall see, the performance became
the privilege of priests or theocratic nobles. An animal,
generally a pig,^^ but sometimes a calf or a lamb,ii2 was bled
to death and the warm flowing blood was poured over the
hands of the slayer, passing away into the sea or into a
running stream. The dead animal was then thrown into the
water, or was buried, but it could not be eaten.

We may compare the Chthonian ceremony of swearing,
in which the slain animal was conceived as at once symbolising
and magically inducing a similar fate in case of perjury. The
Eoman formula is well known. Livy tells ^^^ how a certain
M. Valerius, one of the Fetiales, or Eoman priests, swore on
behalf of the Eoman State, to the Almighty Juppiter, in a
treaty with ancient Alba. ' Audi, Juppiter : audi, pater
patrate populi Albani : audi tu, populus Albanus ... si prior
defexit publico consilio, dolo malo, tu illo die, luppiter, populum
Eomanum sic ferito ut ego hunc porcum hie hodie feriam :
tantoque magis ferito quanto magis potes pollesque.' Now,
all such ceremonies, simple as they may appear, were hedged
round with the most minute regulations as to formulae and
procedure, and were thus removed from the competence of
ordinary individuals.

Moreover, each locality developed differences of usage
which, however slight, could never be ignored. Herodotus,"*
speaking of homicide purgation, implies that all Greeks used

"0 Supra, p. 112 ff. "^ Aosch. Bum. 283.

1" Eur. Ifh. T. 1224. "» i. 24. "« i. 35.

150 FROM HOMER TO DRAGON

the same rites. But that there were minor local variations
may be inferred, perhaps, from a peculiar ceremony in the
Oedipus Coloneus of Sophocles. Oedipus, having gone as an
exile .from Thebes to Attica because he had slain his father,
is told 11^ that he cannot hold converse with the Athenians
while he is still uncleansed. The ban is removed when he is
admitted to ' purgation,' but for the due performance of the
rite he is entirely dependent on local direction. We shall give
the relevant dialogue between Oedipus and the Chorus ^^^ :

Oed. Kind sir,

Be my good guide. I will do all thou biddest.
Ch. Propitiate these holy powers, whose grove

Received thee when first treading this their ground.
Oed. What are the appointed forms ? Advise me, sirs.
Ch. First see to it that from some perennial fount

Clean hands provide a pure drink-ofiering.
Oed. And when I have gotten this unpolluted draught ?
Gh. You will find bowls, formed by a skilful hand.

Whose brims and handles you must duly wreathe.
Oed. With leaves or flocks of wool, or in what way ?
Ch. With tender wool ta'en from a young ewe-lamb.
Oed. Well, and what follows to complete the rite ?
Ch. Next, make libation toward the earliest dawn. . . .
Oed. With what contents

Must this ^1' be filled ? Instruct me.
Ch. Not with wine,

But water and the treasure of the bee.
Oed. And when leaf-shadowed Earth has drunk of this,

What follows ?
Ch. Thou shalt lay upon her then

From both thy hands a row of ohve twigs
Counting thrice nine in all — and add this prayer —
Oed. That is the chief thing — that I long to hear.

It may be said that we have not here a genuine instance
of homicide-purgation. There is no animal sacrifice, no
* cleansing ' by a bath of blood. Water and honey were
regular offerings to the dead, and the express prohibition of
wine-libations reminds us very forcibly of the sacrifice to
the Erinnyes made by Clytaemnestra in the Eumenides of

1" 255 ff. "« 470-485 (trans. L. Campbell). "' fic. vessel.

LEGAL TRANSITIONS 151

Aeschylus. "8 Has Sophocles in mind, then, a local rite of
placation to the Ermnys of Oedipus at Colonus, which he
interprets as a commemoration of purgation rites ? We have
seen how easily such rites may be confused. Or are we to
assume that the purgation rite for involuntary or extenuated
homicide was different from the rites by which a wilful murderer
could be purged ' abroad ' or from those by which a justifiable
slayer was purged at home ? Was the sacrifice which was
offered to the Erinnyes or the Semnai Theai ^^ by mvoluntary
slayers after their return from exile, and by accused persons
who were acquitted by the Areopagus, a regular purgation
rite ? These questions we find it difficult to answer either in
the affirmative or in the negative. Plato's references i^o to
greater and lesser ' cleansings ' according to different degrees
of guilt imply that the average Greek did not understand the
exact nature or purpose of 'purgation' and that the secrets
of this magic art of reconcihation were the exclusive privilege
of theocratic nobles whose interest it was to obscure rather
than to clarify the details of the system. The passage we have
quoted from the Oedipus Coloneus possibly points to vari-
ations in the ' purgation ' ritual according to degrees of guilt
— variations which suggest moreover the ambition and the
power of local deities and priesthoods to retain their dis-
tinctive pecuharities in the execution of a central ApoUine
doctrine, ^^i

In the Iphigenia Taurica of Euripides ^^ -^e find a mock
purgation ceremony arranged by Iphigeneia to save the hves
of Orestes and of Pylades. The image of Artemis is said
(it was a fiction invented by a loving sister) to have turned
in its seat and to have closed its eyes when the blood-stained
Argive cousins entered the temple ! Iphigeneia proposes to
' cleanse ' the pollution by the blood of young lambs shed in
sohtude by the sea and such other things as she has ordered
as purifications. King Thoas, not being himself appealed to,
leaves the whole question of purgation entirely in the hands
of the priestess of Artemis.

From the legend that Bellerophon was cleansed by his
host Proetus,!^ the king of Tiryns, we might be inclined to

118 107. in SuTpra, p. 148; Glotz, op. cit. p. 155. i" Laws, ix. eh. 8.
^" But see infra, p. 153 £E. i" 1176-1230. "' ApoUod. ii. 2. 3.

152 FROM HOMER TO DRAGON

argue that the purgation rites for certain forms of kin-slaying
were performed by private non-sacerdotal individuals. But
every king was a High Priest in primitive religion ; and,
further, we have already seen that Proetus could not have
performed the post-Homeric ceremony which is attributed to
him. It is however possible that Croesus personally ' purged '
the Phrygian homicide mentioned by Herodotus.^^*

It is probable that in Greece the ' cleansers ' of homicide-
guilt were always ' priests ' of some kind. Epimenides of Crete
purged the city of Athens on a famous occasion, yet not from
murder but rather from sacrilege ^^^ ; moreover, Miiller points
out 126 that he was a native of Phaestus in Crete where there
was a very ancient cult of Apollo ; hence Epimenides was more
than probably a member of an Apolline sacerdotal guild.
Miiller is, however, we think mistaken in regarding purgation for
homicide as the exclusive privilege of Apolline priests. The
Euripidean reference to purgation by a priestess of Artemis
which we have just cited,!^? ^^thene's interpretation ^^s qI the
supplication of Orestes as a supplication for purgation, in the
Eumenides of Aeschylus, and many passages in the Laivs of
Plato, 129 reveal the error of this opinion.

The purgation of Orestes by Apollo is described by Aeschylus
in the Eumenides. It is no priest or priestess of Olympian or
Chthonian gods, but Apollo himself,^"" the chief of the KaOdpaiot
Oeoi, who performs the rite. We cannot interpret the ceremony
as the purgation of a wilful matricide ' abroad,' as we think
that such purgation was impossible, at least in historical
times.131 It is the ' purging ' rather of a deed which is either
justified or extenuated by Apollo's express command, a
' purging ' which would normally take place in the slayer's
home-land but which is here attributed to a divine Delphian
purifier either because Apollo was the patron of the Greek
* purgation ' system or because the deed was such that no one
could have cleansed it save the god who had commanded it,
or because a Phocian legend made Phocis, not Athens, the place
to which Orestes fled after the slaying of his mother. Orestes

"* i. 35. "5 Aristotle, Ath. Pol. ch. 1. "« Dorians, i. 227-8.

1" Iph. Taur. 1175 fE. "« Eum. 235-245, and 447-9.

"» e.g. ix. ch. 12. "e Eum. 581.

^'^ See Dem. in Androtion. 593, 26 ; and Plato, Laws, ix. ch. 12.

LEGAL TRANSITIONS 153

tells 1^^ Athene that he is not a suppliant for purgation at
Athens, because he has been already ' purged.' We may
infer from this that a homicide-exile had not to be ' purged '
more than once in his changes of residence abroad, but we
think it probable that such ' extern ' purgation did not dispense
with the need for ' domestic ' purgation if the exile was ever
permitted to return to his home.i^^ Orestes says i^* : * There
is a law that the shedder of blood is debarred from human
intercourse until at the hands of a man who purifies from
bloodshed the blood of a young animal has been poured upon
him. Long ago have I been thus made clean by others who
live elsewhere, by animal victims beside running water.'

From this passage, and from the reference which we have
cited from Euripides' Iphigenia Taurica, as well as from more
general considerations we conclude that homicide-purgation
normally included the shedding of animal blood when some
element of guilt was admitted. It is possible, therefore, that
the rite described by Sophocles, in the Oedipus Coloneus,^^^
was not conceived as a genuine purgation-rite but rather as
an exceptional local procedure which was intended to supple-
ment a presumed anterior purgation.^^^ That Attica was
noteworthy for its scruples regarding ' pollution ' may be
inferred from the remarks of the Corinthian Chorus in the
Medea of Euripides. i^'

We are entirely on the side of Miiller ^^^ and Philippi ^^^ in
the view that purgation, in historical Greece, was applied to
the authors of justifiable bloodshed. i*° This we may regard
as a further confirmation of our opinion that homicide-
purgation was not a placation of ghosts or an expiation offered
to gods, but a solemn and sacred syrabol of reconciliation
between the slayer and his native gods.^^^

Our hypothesis of the origin of the Greek doctrine of
homicide as a pollution will receive still further confirmation
when we describe in more detail the historical Greek system
of penalties for bloodshed and the conceptions of those penalties
which are found in Attic tragedy. We will now give the

^** Eum. 448. "' For the Attic Court Phreatto see infra, oli. iii.
"* Eum. 451 S. "» 470-485. "• See supra, p. 151.

"' 840 ff. "« Eum. p. 136. "» Areop. p. 63.

"0 See Plato, Laws, ix. ch. 8. i" Supra, pp. 113 and 119 £F.

154 FROM HOMER TO DRAGON

reasons which have led us to associate the Greek ' pollution '
doctrine with the Delphian Apollo and his Amphictyonic
League, after which we shall be in a position to discuss ^*2
the influence of the ' pollution ' doctrine on ' wergeld ' and
the legality of ' private settlement.' The following account
is intended as a supplement to Miiller's analysis, which errs
only in attributing purgation-rites exclusively to Apollo and
his priests.

Apollo and Pollution

In Homer, Apollo has already estabHshed at Pytho a temple
of many treasures. ^^^ The reference to * sacred Crisa ' side by
side with ' rocky Pytho ' ^^ suggests, if the Greeks were right
in their interpretation of * Crisa ' as ' the Cretan land,' that the
region was already revered in the days of the Minoan thalasso-
cracy. Aeschylus in the Eumenides ^^^ reproduces the Greek
tradition regarding oracle-deities at Delphi, before the advent
of Apollo. The Delphian priestess accords priority to Ge, the
Earth-goddess, ' the first of prophets,' and then she prays to
Themis, as the second deity who gave oracles there. This
legend probably originated in a joint worship of Ge and of
Themis under the forms of the Mother and the Maid ; for,
just as the cult of Demeter and Kore represented the joint
worship of the Earth and its produce, so the cult of Ge and
Themis represented the worship of the Earth and of the
deified uniformity of the Earth's fertility. Next the priestess
prays to Phoebe, another daughter of Earth, who in turn
transmitted the oracle to her son, Phoebus Apollo. It was
supposed that the temple which is mentioned by Homer was
the fourth ^^^ temple which had been built on that site. This
temple was destroyed in 548 b.c, according to Pausanias.^*'
Hence it is much less probable that the oracular shrine had been
handed down by continuous succession as an inheritance
within a ' divine family ' than that it was repeatedly destroyed
and desecrated by successive invaders. The destruction of
Crisa in 585 b.c. by the Amphictyonic League furnishes an

1" Infra, p. 173 ff. i" II. ix. 404.

1" II. ii. 520 ; Miiller, Dorians, i. 226-232.

^*' 1-10 ; see also Pausanias, x. 5.

"« Cf. Aesch. Eum. 18. "' x. 5|

LEGAL TRANSITIONS 155

historical illustration of its chequered career in prehistoric
ages. The octennial festival known as the Stepteria,!*^ which
commemorated the conquest of the Python by Apollo, had
probably an historical foundation. For the Python, a large
snake, was worshipped as a symbol of the Earth's fertility :
it was therefore associated with Ge and Themis, who * handed
down ' the oracle according to legend. The famous Omphalos
at Delphi, of which the origin and significance were so
mysterious to the Greeks, was really the tombstone of the
Python. But Earth, though buried, still Hved in the tomb !
Tt was from a cavern of Earth that the Pythian priestess
received the vapours which produced her ' anaesthetic revela-
tion.'!^^ In the ApolHne shrine was the Hestia, or sacred
Hearth, derived from pre- Olympian ancestor worship and
necromantic art. Before the pilgrim entered the shrine of
the Olympian oracle, he had to perform a Chthonian sacrifice,
and offer a rrekavof;, a mixture of milk, wine and honey, which
was a characteristic offering at the tombs of the dead.^^^
Around the tomb of the Python stood Gorgon-images,!^! which
were probably suggested by ' image-magic ' as a placation of
the wrath of the Erinnyes, who sought the Hfe of the slayer
of the Python. It was from these images, we think, that
Aeschylus derived his conception of the Erinnyes, and the
famous scene ^^^ which depicts them as sleeping a loathsome
sleep in the temple of Apollo, whom they hate but also fear.
We find in AeHan and Plutarch the legend^^^ th^^ Apollo, in
the days of his conquest of Delphi, fled to Tempo, after slaying
the Python, to be purified from the pollution. The Stepteria
festival was believed to commemorate his flight ! In this
legend, however, as in that in which Zeus purifies Ixion,!^'' we
see the effect of aetiological myth- making and the operation of
a principle of primitive religion whereby man makes the gods
in his own image and attributes to them the emotions and
the observances of his own day.

As we cannot regard Apollo, notwithstanding Miillor's ^^^
reasoning, as the special product of Dorian religion, so we

'«8 Harrison, Themis, pp. 39(>-429.

**' See James, Varieties of Religious Experience, p. 387 ff.

1" Euripides, Ion, 226 ff. "* Ibid. 225.

1" Bum. 95-200. *" Ael. Var. Hist. in. I; Plut. Q. Or. xii.

»" Aeschylus, Eum. 440. "' Dorians, i. 297 ff.

156 FROM HOMER TO DRAGON

cannot attribute his exaltation in post-Homeric days ex-
clusively to the Dorian invasion. The Achaeans worshipped
Apollo as a prophet-god and as a powerful ally in war, but
their hegemony in Greece was based on military control rather
than on theocratic manipulation. The Delphians are not
mentioned in Homer. They were a Dorian dominant caste
which conquered the Phocian masters of the ' Homeric '
temple at Pytho,i^® about 1000 b.c. Undoubtedly they could
not have retained the fruits of their conquest for any period
of time, if they had not been supported by the power of the
Dorian invaders of Southern Greece. Thus, in 448 B.C., when
the Phocians had reoccupied Delphi, it was the Dorian Spartans
who sent an army to restore it to the Delphians.^'^' Yet the
Athenians, who were then supreme in Central Greece, restored
it to the Phocians for a time. But, about 585 B.C., when
anti-Dorism was at its height in Greece, it was to a northern
league of Greek States, in which the Dorians were subordinate,
that Delphi looked for help against the Phocians of Crisa.^^^
The fact that Cleisthenes of Sicyon, an anti-Dorian, championed
the Delphians in this campaign, proves that their Dorian
nationality was already subordinated to the prestige which
they had won as the High Priests of Greek prophetic
religion : and the loan of fifteen talents which a Spartan
king gave to the Phocian general who had once more
seized Delphi in 356 B.C. shows how Dorism had lost its
primal solidarity.^^^

We think, then, that the prestige of the Delphian Apollo,
though originating in the Dorian migration, was due to a
combination of two forces : (1) the widespread cult of Apollo
in Greece and in Asia Minor : and (2) the skill by which the
Delphians (who controlled the oracular decrees) impressed the
Greeks and foreign peoples with the unrivalled divinity of
their local shrine in matters of prophecy and healing-magic ;
and organised under their banner the local priesthoods of
Greece by annual processions and pilgrimages, by the con-
struction of sacred roads, and the establishment of religious
Amphictyonies.i^° While other ' sacerdotal ' nobles in Greece

"6 n. ii. 517 ; ix. 405. "7 See Bury, H.O. p. 361.

158 Op. cit. p. 157. "9 Op. cif. p. 695.

160 Coulanges, Of. qU, p. 279 ; Miiller, Dorians, i. 258, 270, 272-9.

LEGAL TRANSITIONS 157

"worshipped a number of deities, Olympian and Chthonian,
the Delphians seem to have concentrated on Apollo. They
were definitely theocratic — being a select caste of nobles,
whose High Priests were elected by lot.^^i They formed a
criminal court which exacted the death penalty for sacrilege.
It follows that when homicide became a religious offence,
these judges would not only have decided all cases within
their territory,!^^ distinguished between different degrees of
guilt, and pronounced upon the possibility of purgation,
but they would also have used the prestige of the oracle to
make their decisions imitated elsewhere. Thus, the Attic
Eupatridae, who worshipped Apollo Patroos, and their judges,
the Ephetae, who swore by him before their trials,^^^ would
naturally have adopted the decisions of the central Apolline
oracle. Moreover, the annual processions of representatives
{decopoC} of Greek states to Delphi, the Pythian Games, a
festival in which all Greeks participated, and the formation
of religious international leagues or Amphictyonies made
obedience to Apolline oracles almost a matter of obligation.

The great Thessalian Amphictyony of Demeter at Anthela,
a very ancient association, including Thessalians, Locrians,
Phocians, Boeotians, Athenians, Dorian and minor states,
came in the sixth century ^^ to meet also at Delphi, and
the temple was placed under the control of international
Hieromnemones who met twice a year and promulgated laws
to be obeyed by all its members, called Amphictyonic laws.
It is significant that, in historical Athens, murder exiles were
prohibited from Amphictyonic festivals.^^^ This law was
clearly of Amphictyonic origin.^^*^

We have quoted Thucydides'^®' account of the command
which was issued by the oracle of Apollo to Alcmacon, the
matricide, directing him to travel to the Echinades Islands.
This legend bears, on the face of it, an antique stamp, and the
function which is here ascribed to the Delphic oracle is a first-

»" Muller, op. cit. p. 232; and Euripides, 7on, 1111, 1220, 125G there
quoted.

102 fjj_ Plato, Laws, ix. ch. 11, re kin-slaying: 'lot the judges of these
matters be the same as those to whom has been given the power of deciding

upon sacrilege.' "' Muller, i. 263-5.

i«* Bury, op. cit. p. 159. ^'^ Law of Dracon, Dem. in Arist. 632.

"• Cf. Coulanges, p. 279. »«' Thuo. ii. 102.

158 FROM HOMER TO DRAGON

rate piece of evidence for the connexion of Apollo with the
historical doctrine of ' pollution.'

We have quoted Herodotus' ^^^ account of the story con-
cerning Phrixus and Athamas, in which a Delphic oracle was
said to have commanded the Thessalians to ' purge ' their
country by slaying Athamas in sacrifice. This legend we regard
as ' unhistorical ' and pseudo-aetiological, but the r61e which
it assigns to Delphi may be cited in support of our present
hypothesis.
T"" In historical Attica, the rites of homicide-purgation were
performed by three persons called Exegetae or Interpreters
who, Suidas ^^^ assures us, were appointed or controlled by
Delphi {JlvOoxpvo'Toi). Plato,i'^ speaking of the appointment
of Sacred Interpreters, says : 'It is right to bring from
Delphi the laws relating to all " divine matters " and to follow
these laws, having appointed interpreters for them.' Speak-
ing of their appointment he says that from the names of
candidates which stood first on the list after election, nine
should be sent to Delphi, and ' the god ' was to select
three of these names. The homicide laws of Dracon, as we
shall see later, were not a complete code of homicide-law.
Many details were omitted, and these details, we believe, were
worked out in the unwritten code of the Ephetae and the
Exegetae. In the Euthyphro'^'''^ of Plato, a poor freeman
who had killed a slave was put in chains and cast into a trench
on the wayside to await the decision of the Exegetae concern-
ing his guilt ! The man died from hunger and neglect before
the decision arrived, and the question of avenging his death
forms one of the problems of the dialogue.

Coulanges points out ^'^ that the Spartans regarded, not
Lycurgus, but Apollo, as the author of their laws. These
laws were livd oxp'nf^Toi,. If they operated, concerning homi-
cide, in a comparatively severe manner, this was because the
Spartan military system absorbed without much modifica-
tion the autocratic tendencies of Delphic law, but we must
not attach too much importance to a single statement of
Xenophon's which can perhaps be otherwise explained.!'^

^** Her. vii. 197. ^" s.v. f^riynral.

"» Laws, vi. ch. 7. "^ 1-6. "« Ancient City, p. 252.

^" Xenophon, Anabasis, iv. 8. 25 ; see infra, p. 173.

LEGAL TRANSITIONS 159

Solon, the Athenian legislator, abolished all the laws of
Dracon except those which related to homicide.^'* 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.^'^ 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 com-
promise between tribal customs and the seventh-century
Apolline doctrine of ' pollution.' Coulanges says ^'^ that Solon
did not change the murder laws of Dracon, because they were
' divine,' and to disobey or tamper \\dth 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,!'' 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. ^'^ We have seen ^'^ that
in the clan-system, kin-slaying was normally punished by
perpetual exile, but not by death. We do not agree with
Caillemer i®" 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. * lis
hesitent,' he says, ' souvent a verser le sang de leur parent :
ils se bornent au bannissement du coupable.' In Plato, ^^^
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.' ^^^ It
could not have directly produced it, as is clear from the fact
that amongst the Israelites, who still retained the avenger of

"* Arist. Ath. Pol. 7. 1. "" Plutarch, Solon, 17.

"« Op. cit. p. 252. 1" Laws, ix. ch. 12.

^'* See Aeschylus, Agam. 1557. *'• Supra, p. 47 ff.

^"' See article, s.v. <p6vo^, in Daremborg and Saglio, p. 440.
1" Laws, ix. ch. 12. "» See injra, pp. 229, 23G ff.

160 FROM HOIVIER TO DRACON

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 execu-
tion 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 dis-
cuss more fully, later,!^^ ^i^g 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,!^* 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 pubhc
opinion, or by written codes — and the cases which are here
enunciated are identical with those of the Draconian law
regarding justifiable bloodshed.^^^ We cite only a section of
the passage,!^^ which is sufficient for our present purpose.
' If any person unintentionally slays a fellow-citizen (^tXo?) in
a " contest " or at the pubhc 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 {Ka6ap6<;).'
The scholiast gives the Delphic law, as foUows.^^' ' Tiie law or

183 See infra, ch. ii. ^8* gk. jx. ch. 12.

18^ See Demosthenes in Aristoc. 637. ^86 See Laws, ix. ch. 8.

18' & eK AeXcpwv KO/xtcrOels v6fJL0S riyovv xpTjtr/ibs e^rl rov &kovtos avf\ovTOS rhv
<pl\ov. ^KTuvas ffhv kratpov olixvvoiv, oh (xe fiiaivei aXfia, ^6vov St TreKeis Kadapiirepos
f) irdpos ^cr6a • . . o avSp\ (ptXtf 6vI)<tkovti irdpaiv ireKas ovk eTraft.vvas, jjAi/Oer oh
Ka6ap6s.

LEGAL TRANSITIONS 161

oracle brought from Delphi regarding a man who kills his friend
{i.e. fellow-citizen, as distinct from public enemy) involun-
tarily : — " Thou hast slain thy comrade {eToipov) while
intending to defend him (afivvwv) — 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 de-
fended 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 inter-
national code of laws. Here, then, we find Plato, a member of
that Attic State which prided itself on the early foundation i®^
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 ^^^ to the exclusion of homicide-
exiles from Amphictyonic festivals in Greece, and we have main-
tained 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 ^^^ 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 ^^^ 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 cor-
rectly the origin of the law, though he is reasonably successful
in explaining the law.^^^ ' What,' ho says, ' was the legislator's

"8 Pausanias, i. 28. 10. i" Supra, p. 157. "<> Iti Aru'itoc. 632.

"1 Supra, p. 145. i»» In Arisloc. (532- 034.

162 FROM HOMER TO DRACON

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 pos-
sible 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 ^^^ 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 sufl&cient
deterrent. New social conditions, new rehgious 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, ^^* 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

"' Infra, p. 164 fE. "* See supra, p. 142 £E.

LEGAL TRANSITIONS 163

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 ^^^
that the immunity of homicide exiles abroad originated in
separate treaties of Kefuge or dcrvXla. 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 in-
voluntary homicide, he says ^^^ : ' 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 ^^'^ :
' If he goes abroad without challenging a verdict {fjurj 9e\r]cra<i
KpicTLv viroaxetv), 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 ^^^ : * If a stranger involun-
tarily kills a stranger in the city, let anyone who wishes pro-
secute 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 ho 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,^"^ and if he returns contrary to the

i»s Op. cit. p. 218. i»« Law>!, ix. ch. 8. »»' Ih. ch. 11.

^** lb. ch. 8. "• T7JS x'i/"" Tijs Twi/ vSfiwy ruvSt Kxipias.

164 FROM HOMER TO DRAGON

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 dvSpoXrj^jrLa, 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 ^^^ : ' 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 (St/ca? tov ^ovov
vTrScrxfoo'tv) 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 ^°i 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 ayhpoX-T^-^ia was an
important corrective of the laxity of this system. Eelatives,
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 !

We may distinguish three different cases of avZpokrj^^ia.
(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

='»<' Dem. in Aristoe. 647-8. ^'i Loc. cit.

LEGAL TRANSITIONS 165

of the slayer and could put him on trial. If after conviction
he fled to bis 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, (h) 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 irpoardr'qq ; 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 Amphicty-
onic 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 hterature. 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,^"^ that the homicide penalties
of historical Greece were the result of a compromise between
the rehgion of Apollo and the traditions of local State-gods

««« Swpra, p. 145.

166 FROM HOMER TO DRACON

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,2°^ 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 aa-vkia or Kefuge between
individual States, explains the extradition law regarding the
seizure of hostages as an ancient tradition of the clans. Indi-
cating the contrast which exists between ancient and modern
extradition, he observes '^^ : ' En Gr^ce, I'extradition a de
bonne heure figure dans le droit des gens. Mais elle n'etait
pas du tout a I'origine ce qu'elle est devenue. Les peuples
civilises des temps modernes ont pour principe de livrer des
etrangers presumes coupables de crimes commis en pays
etranger, mais non pas leurs nationaux, meme pour crimes
commis sur terre etrangere. Les anciens se faisaient un point
d'honneur de ne pas abandonner le malheureux qui setait
enfui sur leur sol et confie en leur protection. L'hote est
toujours sacre : le foyer d'une cite est un asile inviolable . . .
c'est I'extradition telle qu'ont pratiquee 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 pecuhar
characteristics. But criminals cannot claim any right of
hospitality, in the ordinary sense. Moreover, Glotz forgets
that a Greek State had to expel or dehver 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

^"^ Op. cit. p. 218. -"' lb. p. 214

LEGAL TRANSITIONS 167

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 varia-
tions, bears, we think, the stamp of Amphictyonic legislation
in the age of aristocratic rule in Greece, or in what we may
call the ApolKne 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 inter-
national 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 .^'^^ 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.' ^"^ 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,^"' ' the satisfac-
tion for the death of Leonidas was paid by Mardonius accord-
ing to the oracle given to the Spartans.' Again, we are told ^"^
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

«"» vii. 238. >">« viii. 114. ^^ ix. OJ. »*»* i. 150, 157.

168 FROM HOMER TO DRAGON

was there an oracle established of olden time, which all the
lonians and Aeohans 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 viola-
tion of a suppliant's rights ! This does not imply, as Glotz ^"^
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 ^^'^ and by Aeschylus,^^^

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 role in the Olympian religion

of post-Homeric days, which tended to extol Apollo the Son

over Zeus the Father. Sidgwick's view ^^^ that this legend

originated in an attempt to derive the name Ixion from the

root Ik as found in the words UiTi]^ and iKereveiv (which refer

to suppliant-rights) seems to us very probable. Pindar has

perhaps been misinterpreted by Verrall ^i^ in the translation

of ifi(f)v\Lov atfia as kindred-murder. We have seen ^^* that

the word €fM(f)v\o<; 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 (^yX?;). Pindar asserts that the act of Ixion was malicious:

but we have said ^^^ that for malicious kin-slaying purgation

was not possible : ' Of a kindred blood defiled,' says Plato,^^

' there is no other cleansing . . . before the life that has

sinned shall pay kin blood for kin blood.' Hence, it is neces-

2o» Op. cit. p. 214. *io Fyth. ii. 32. "i Eum. 444.

"^ See note, Eum. ad loc. ^^^ See edition of Eumenides, p. 78.

"* Supra, pp. 21, 65. "s Suprc, p. 142. "« Laws, ix. ch. 12.

LEGAL TRANSITIONS 169

sary 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 2^' to have been the first who
' supphcated ' for purgation, and is said to have been purged
hy Zeus. Now Apollo, not Zeus, was the pioneer amongst
the Purifying gods {KaOdpaioi Oeoi). It was Apollo who
purified Orestes, in the legend which Aeschylus follows in the
Eumenides.-^^ ' 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,^!^ what a difficult problem the Homeric
saga of Orestes presented to the legend-makers of the 'ApoUine '
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 ? ' ^^^ 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 Exe-
getae or the Sacred Interpreters of the laws of * purgation ' ^^ ;
surely his command, impossible to disobey, would have been
admitted as a justification for the deed of Orestes. In the
Eumenides ^^ 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

"' Schol. ad Eum. 444. »" 580 ff. "» Infra, Bk. III.

"•> Laws, ix. ch. 9. "' MuUor, Eum. p. lil.

«» Supra, p. 158. «" 612-616.

170 FROM HOMER TO DRAGON

judges here.' And Apollo replies ^^ : '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 com-
mand. Take note, ye judges, of the value of such a justifica-
tion.' So, in the Electra of Sophocles, Orestes says ^^^ :
* 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, 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,^^^ the plea of justifiable
matricide is almost entirely absent, Orestes tells the Chorus ^^^ :
' 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.^^^
In this option of death or exile we have the normal Attic,
and, therefore,^^^ the normal Greek penalty for wilful murder.
The direction which Apollo gives, in the Oedipus Bex of
Sophocles, is quite general.^^o 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 evolu-
tion of the legend must have been attended with considerable

2" 618-622. 225 32 ff. 226 j^fra, p. 348 ff. ^27 qqq ff.

228 Sophocles, Oed. Rex, 95 £E. 229 j^jra, p. 173.

23" Infra, p. 311. We do not attach any legal importance to Oedipus'
reference to parricide (1441). It would have ruined the dramatic plot if this
word were mentioned earlier in the play.

LEGAL TRANSITIONS 171

difficulty. Legend-makers could not ignore the Homeric saga
which told 2^1 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 stand-
point 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 ^^^ :
' 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 inteUigiblo if we assume a connexion between Apollo

*" Od. xi. 271 ff. "« See Oed. Rex, 805 ff.

"3 Oed. Rex, 1438. «''« Infra, Bk. III. <h. ii.

172 FROM HOMER TO DRAGON

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.^^^ According to Euripides,^^^ Oedipus' sons im-
prisoned him, but Kreon drove him into exile.

In the Orestes of Euripides ^37 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,^^^ Castor and Pollux refer, by way of prophecy,
to the fact that Apollo will ultimately secure Orestes' deliver-
ance from the Erinnyes.

In the Ion of Euripides ^^^ 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 pre-
cincts of the temple at the hands of Orestes and the Delphians.
The Messenger says 2*° : ' 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.'

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 ApoUine atmosphere. We have already ^^ quoted
Herodotus' opinion as to the universahty 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,

"6 Soph. Oed. Col. 600, 770.

"« See Phoenissae, 60 £E., 1626 ; infra, p. 382. "" 1640 ff.

"8 1245 fE. "9 1330 ff. 240 1155 ff_ 24i Supra, p. 139.

LEGAL TRANSITIONS 173

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 ^^2 we are told that Orestes did not follow
' the common law of the Greeks,' In the Heracleidae, ^^^
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, ^^ 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 ^^^ referred to the possi-
bihty that a more severe code of penalties for homicide existed
at Sparta than in other parts of Greece. Xenophon ^^^ 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 char-
acter 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 ^^^ ;
moreover, for slaying in a passion, which is quasi-involuntary,
he decrees perpetual exile for the second offence.^^^ 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 ^49 the absence of any refer-
ence 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,^^^ 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

2« 495_ 213 1010 ff. 2" 1282 ff. ^is Supra, pp. 130, 168.

='■'« Anaba-^U, iv. 8. 25. ="' Latos, ix. ch. 8. vVi'

"« lb. ch. 9. -«^ Supra, p. 12. "» See Mullor, Dorians, i. 227.

174 FROM HOMER TO DRAGON

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 prosecu-
tion, 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 settle-
ments were legal, then our theory that pollution abolished
wergeld cannot stand. We are glad to be able to quote the
authority of Philippi ^^i in favour of the illegality of ' private
settlement,' but as the arguments of Philippi are rejected by
Glotz,2^2 we must in turn reject the arguments of Glotz !
It is strange that Miiller, who holds ^53 that wergeld origi-
nated 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 con-
clusions in advance. We believe that ' private settlement '
was permitted by law or custom — it was not expressly pro-
hibited 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 hfe. His presence was not a
cause of pollution.

We have seen ^ss 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

"1 Areopag, pp. 148-9. "j Qp. cit. p. 314 ff.

"3 Bum. p. 123 ; supra, p. 112. *" Eum. p. 92.

"" For conclusion see p. 213. "6 Supra, p. 143 fi.

LEGAL TRANSITIONS 175

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 ^^^ set in motion the entire supernatural vigour of
the avenging Erinnyes. Thus in the Eumenides of Aeschylus ^^^
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 pre-
sumed ' 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 rehgious scruple.^^^ 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 bo
paid before purgation was permitted.

It is difficult to understand how Glotz can attribute to

"^ See Lysias c. Agor. 40-42.

"8 See94ff., 117 ff., 179 ff.

*" See Plato, Laws, ix. oh. 8, for greater and lesser purifications.

176 FROM HOMER TO DRAGON

' pollution ' a considerable influence in abolishing * private
vengeance ' and in necessitating State interference in homi-
cide,2^° and at the same time maintain ^^^ 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.^^^ He could not enter the city
temples, or frequent the public places, under penalty of death.
,Glotz admits ^63 that a person who was accused but uncon-
victed 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 reahty 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 '
jBxcept in the event of ' release.'

We will now support and illustrate our views by a few
quotations. Demosthenes ^^^ tells us that ' if the victim
(o Tradaiv) himself releases the slayer from guilt of blood before
he (the victim) dies, it is not lawful for the relatives to prose-
cute.' This is a most important piece of evidence, although
the context in which it occurs is vitiated by rhetorical exaggera-
tion. It means, in effect, that in any kind of homicide ^^^
the relatives of the slain were powerless in regard to prosecu-
tion if the dying man ' released ' his slayer and did not ' charge '
them to avenge him. Thus even the homicide laws of a theo-
cratic Apollo and of centralised Greek governments depend
for their operation on the will of the victim. In such an event

"0 Op. cit. pp. 237-8. 261 7j. p_ 314 £f_

"2 See Plato, Laws, ix. ch. 11 and ch. 12; Pollux, viii. 90; Arist.
Ath. Pol. 57.

=«3 P. 428. 261 gee infra, p. 181 ff.

26* G. Pantaen. 983, 20 ; also c. N ausimachum, 991.

286 Miiller (Eum. p. 92) thinks this refers to manslaughter only.

LEGAL TRANSITIONS 177

the slayer was not ' polluted.' No impiety, no illegality was
involved in ' private settlement ' in such a case ; on the con-
trary, 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 retribu-
tion — 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 ^67 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 ' {(f)l,Xot<i) 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 ^es — political
' ferment demands such drastic action — and they would have
slain Agoratus as a criminal {KaKovpryo<i) 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 poHtical prejudice. The plaintiff
in this speech ^ea appeals to the Hehasts 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. 2'"
It was deliberate political murder.

Miiller 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

*•» C. Agor. 40-42. ««« lb. 78. "» lb. 96-7.

'"'^ Smith, Diet. Gk. Aid. s.v. (p6yos, vol. ii. p. 38C. *" Evm. p. 92.

178 FROM HOMER TO DRAGON

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.^'^
At present we are speaking of ' compromise,' or of * private
settlement,' without exile : we may note Miiller'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.^'^ ' Forgiveness ' on the part of the
' dying ' — as distinct from * release,' which Plato has not in
mind ^'^ — always reduced the charge to one of manslaughter.
Hence we have argued that ' release ' abolished all guilt
and pollution. Speaking of ' forgiveness ' Plato says ^'^ : ' If
any person of his own accord gives an absolution (a^eo-t?) 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 {iv vofiw).' Speaking
of general cases of manslaughter, he says ^'^ : ' 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

«" Infra, p. 205 ; see also p. 198. "» Infra, p. 210.

^''* We interpret the Greek words &<pf(ns and a^lrj/xi as implying ' release '
when blood-guilt is entirely remitted, as in the Demosthenic passages cited on
page 176. Plato, however, obviously applies the terms to ' partial release ' or
forgiveness. "^ Laws, ix, ch. 9. *" Ibid. ch. 8.

LEGAL TRANSITIONS 179

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
slaj'^er 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 Miiller's
statement regarding Plato ^'' — 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 Miiller 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. ^^s

Glotz also attaches considerable importance to such
Demosthenic passages, forgetting that they are not legal docu-
ments and that they are, moreover, inconsistent with other
passages from the same author. Glotz is anxious to estabhsh
the theory that wergeld was abolished in Athens not by
Dracon, as is generally held, but by Solon, who sought to
exalt the power of the State and to weaken the influence of
the clans. To arrive at this conclusion, Glotz boldly assumes
that a certain clause in a Draconian law, namely that which
forbade the acceptance of ' ransom ' from a murderer found
in his home-land after conviction, was not inscribed by l)racon
but by Solon. 279 Our opinion is that neither Dracon nor
Solon abolished wergeld, but that it had been already rendered
sacrilegious by the Apolline doctrine of pollution in the seventh
century b.c. The laws of Dracon do not anywhere mention
real wergeld — they simply assume that such a system was
obsolete. But the phrase /i?;^' airoivav in the Draconian law,-^"
which is usually but quite erroneously connected with wer-
geld, suggests, if it does not prove, what Glotz would not
apply to the period of Dracon or of Solon — namely, the fact
that ' private settlement ' was illegal. Why should a law

*" Eum. p. 93. »" Injra, p. 186 ff.

"» Op. c/<. pp. 319-321, 363-304, p. 377.

"0 Dem. in Aristoc. 629-630 ; see also infra, p. 222.

180 FROM HOMER TO DRAGON

forbid the ' ransom ' of a murderer's life after conviction if it
permitted such a ' ransom ' before conviction ? Leaving aside
rehgious considerations, which we, however, believe to be
essential to the matter, and viewing the question from the
standpoint of Glotz's own pet hypothesis as to the exaltation
of State power,28i we believe that the opposite procedure
would have been more logical — that a State would more
naturally have prohibited ' ransom ' before conviction, but
permitted it afterwards, when the property of the slayer
had found its way into the coffers of the State, and when the
State had extracted all that it could possibly extract from the
unfortunate slayer ! But, as a matter of fact, the ' ransom '
which is prohibited by this law of Dracon was not a real
' ransom ' of the slayer's life in the legal sense. It refers only
to a slayer caught ' en rupture de ban.' It was merely a bribe
which the slayer would be disposed to offer to any citizen whom
he encountered in order to be allowed to escape from forbidden
territory. His life was still forfeit if he returned again, or
even if he did not succeed in escaping after he had bribed, say,
one citizen, out of the total number of citizens in the State.
The law says : ' It shall be lawful to kill murderers (found)
in our territory . . . but not to amerce them.' The penalty
for ' amercement ' was ' double the amount extorted.' To
our mind the law suggests the illegality of ' private settlement '
rather than the abolition of wergeld ! Glotz, moreover,
seems to ignore the Demosthenic references to a jpacfyrj acre/9eta9,
an indictment for impiety, which could be brought against
/ the relatives of a slain person if they did not prosecute the
slayer. We need not dwell upon the importance of a ypacf^'^
in Attic law. It denoted a most important species of public
accusation, similar to our modern indictments or impeach-
ments. Human nature being what it is, and Greek human
nature being what it was, can we conceive that a Greek would
have omitted to propose a ' private settlement ' if it had been
legal for him to do so, as an option for prosecution ? Can
we conceive that prosecutions for homicide would ever have
occurred if such an option would have freed the relatives of
the slain from liability to a charge of impiety which involved
their banishment and the confiscation of their property ? We

"1 See op. cit. pp. 377-8.

LEGAL TRANSITIONS 181

must then rather assume that the guilt of impiety would
have been still incurred if the relatives of the slain accepted
' settlement ' and failed to prosecute.

Glotz makes no reference to the ypa(J37] dae^eia^. We agree
with him ^82 that there was no ypo.^?; (^ovov'm. Attic law, but we
do not understand why he should credit Solon with the institu-
tion of ypaipai, for v^pL<i and KaKcoai^;, but omit to mention
aae^eia. The indictment for impiety, which we attribute to
Solon,^^^ is incompatible with ' private settlement ' for homi-
cide, which Glotz believes to have been legal in the days
of Demosthenes as in those of Solon. Let us see what
Demosthenes has to say of this indictment.

In his speech against Androtion ^s* a certain Diodorus says
of Androtion : ' He accused me of a deed which anyone who
was not of his type would have been afraid to mention, namely,
of slaying my own father : he prepared an indictment of
impiety ^85 not against me, but against my uncle, impeaching
him for impiety in associating with one who, as alleged,
had committed this crime ; he put him on trial, and if he
happened ^86 to be found guilty — .what man would have suffered
a more cruel fate than I would at this man's hands ? What
citizen (^tXo?) or stranger would have ever consented to asso-
ciate with me ? What city {i.e. State) would have tolerated
within its precincts a man who appeared to have perpetrated
such an impious deed ? None whatever.' It is noteworthy
that the indictment, which is here referred to, was brought,
not against the alleged parricide, but against his uncle. The
reason is not, as Glotz would maintain,^^' that parricide was
not a crime in historical Athens, but that direct prosecution
of homicides was limited, by a legal technicahty, based on
immemorial custom, to the relatives of the slain. If Glotz's
theory of unrestrained ' private settlement ' ^ss ig assumed,
what a glorious hunting-ground for unscrupulous blackmailers
must Athens have been ! We can conceive Diodorus' uncle
approaching Diodorus with his hand outstretched and crying
* Your money or your life ' ! Wo can also conceive any out-
sider — 'there is no limit to the number — 'approaching the uncle

*" Op. cit. p. 373. "3 Plutarch, Solon, 18. "* 593.

*"'' afftfiflas ypa(p{\v. *"• avvf&i).

=»" Op. cit. p. 322. ««8 lb. pp. 314, 324, 372,

182 FROM HOMER TO DRAGON

of Diodorus equally determined to ' settle ' the indictment for
impiety ! This is much too absurd for reality, even in a
modern State, not to speak of the ancient city with its
ubiquitous gods and ghosts and scruples ! This passage
explains, incidentally, an episode in the Euthyphro of
Plato.2^^ Euthyphro proposes to accuse his father of homicide,
since a poor freeman in his employment at Naxos, whom his
father had put in chains and cast by the wayside to await the
decision of the Exegetae regarding the slaying of a slave by
his freeman employee, had died of hunger and neglect.
Socrates asks if Euthyphro is a relative of the freeman.
Euthyphro says that he is not, but that he is * polluted ' by
associating with his father who is a murderer, and that he is
therefore bound to prosecute him. Plato, as we have said,
is probably here posing a problem which the Attic legal mind
would have found it difficult to solve. But the atmosphere
of the dialogue is very far removed from that of ' private
settlement ' for homicide.

That the action of Euthyphro was from one point of view
impious {av6(no<;), which is to say of doubtful legality, is
suggested by another passage in Demosthenes.^^*^ A nurse
in the employment of the plaintiff died as a result of rough
treatment at the hands of two men who came to his house to
distrain his goods and chattels. The plaintiff tells how he
went to the Interpreters to ask their advice. The Interpreters
said that the only course which was open to him in law was
* to carry a spear in front of the funeral procession, and at the
tomb to publicly inquire {'Trpoayopevetv) if the woman had any
relative, and to watch the tomb for three days ' ! ' For the
woman,' they said, ' was not akin to you, nor even a slave of
yours . . . and it is to relatives and " masters " that the law
assigns the duty of prosecution.' The plaintiff then looked at
a copy of Dracon's laws and consulted his friends, and taking
into account the fact that he was not a personal witness of
the assault and could not find any witnesses that would weigh
with a court, he obeyed the Interpreters, and refrained from
further action. The Draconian law required, we are told,
that in taking the oath in a murder charge the accuser had to
state definitely in the court in what relationship he stood to

"» 1-6, especially see 5 e. ^s" C. Euerg. et Mneaib. 1161.

J-

LEGAL TRANSITIONS 183

deceased or whether the deceased was his slave. This technical
legal condition, the demands of this legal formula, could not
be complied with by the plaintiff. Hence it is doubtful if
Euthyphro could have complied with them, unless, perhaps,
he regarded himself as a kind of ' master ' in relation to the
deceased freeman.

But the indictment for impiety was based on the religious
doctrine of pollution rather than on clan-technicalities con-
nected with funerals and burial and obsolete wergeld agree-
ments. It is an instance of unsolved conflict between these
two systems which we find in the Euthyphro and in the
speech against Androtion — ^a conflict which was in other re-
spects mitigated by the compromise we have described ^^^
in historical Greek homicide law. The indictment for impiety
could be brought by any citizen against the relatives of a
murdered man, if they failed to prosecute, and if the dying
man had not given a ' release.' If such failure to prosecute was
impious, then surely a ' private settlement ' which prevented
prosecution was also impious.

We will now examine two passages — one from Demo-
sthenes, the other from Aristophanes — 'Which Glotz quotes in
support of his theory of the legality of ' private settlement.'
Glotz's theory is clearly stated in these words ^^^ : ' II est
improbable que la reconciliation ait ete explicitement interdite
et le silence de la loi valait une permission. Par autorisation
formelle ou par tolerance, ouvertement ou tacitement I'Etat
devait consacrer dans tous les cas le privilege de la famille.'
The only thing, in Glotz's view, that would have forced a
' recourse to the State ' was the absence of unanimity in the
relatives concerning the amount for which they would ' settle.'
One dissentient voice compelled a recourse to prosecution-^**^

In the speech of Demosthenes against Theocrines ^^* we
read that a certain Theocrines whose brother had been murdered
threatened to bring Demochares, the alleged murderer, before
the Areopagus, unless ho paid him a sum of money. The
money was paid, and that was the end of it ! The relevant
passage reads : ' Not very long after his dismissal, his brother
was slain by violence. Mark how he behaved ! He made

«" Supra, p. 143 ff. ^"'^ o^, ^;i p ;{i4

-" lb. p. 324. ■'»* 1331 (Reiake).

184 FROM HOMER TO DRAGON

inquiries as to the murderers, and having discovered who they
were, he accepted a sum of money and abandoned further
proceedings. He went round threatening to bring Demochares
before the Areopagus until he " compounded " with the
guilty parties. What an honest and trustworthy man ! '
Philippi's conclusion ^95 that the action of Theocrines was
illegal does not convince Glotz, who inquires ^^^ : ' Qu'est-
ce done qui retient Demosth^ne de fletrir un tel pacte comme
illicite ? ' But it is quite obvious that the action of Theocrines
is presented by Demosthenes as unusual and disgraceful. The
object of Demosthenes, in the speech, is to emphasise the
mercenary character of Theocrines. He is more concerned
with this aspect of Theocrines' action than with its legality
or illegality. We may therefore answer Glotz's question by
asking another : ' If this action was legal, why does Demo-
sthenes refer to it as a disgrace ? ' Or, again : * Could an act
be described as illegal which was not expressly prohibited by
law ? ' Glotz in seeking to prove that ' private settlement '
was legal infers that it was legal because it is not here declared
illegal ! This argument seems to us invalid. Demosthenes
wrote speeches for private and public litigants. Sometimes
he emphasised one point, sometimes the opposite point. He
does not wish to stultify himself unnecessarily. He is not a
self-constituted legislator, as Plato, in his ideal world, was.
He leaves the legal decision to the jury and aims merely at a
victory in the suit. Moreover, we must point out, in Attic
law there was a Statute of Limitations. If Theocrines kept
his secret to himself, and if he had no religious scruples about
the matter, he could, after a number of years, have divulged
it with impunity. But Demosthenes speaks as if the whole
action only took twenty-four hours ! This may be excellent
rhetorical skill, but it may also involve a complete distortion
of facts. We admit, of course, that ' private settlements '
for homicide did occasionally take place in historical Athens,
as they do in modern States. The actuality of such a settle-
ment may perhaps be inferred from this speech of Demosthenes,
but certainly not the legality of it.

The second text which Glotz adduces in support of his
theory is a passage from the Frogs of Aristophanes,^^' in which

*" Areop. pp. 148-9. "96 Qp. cit. p. 315. "" 1154-1166.

LEGAL TRANSITIONS 185

Euripides criticises as a redundant expression the following
Aeschylean verse ^^ which describes the return of Orestes to
Argos after his sojourn as an exile in Phocis :

i]KCi) yap £9 yrjv r'^vSe koI Karep^oiiai.

Aeschylus, in reply, denies that there is any redundancy in
the verse, asserting that there is a very real difference between
the home-coming of a citizen and that of an exile. Euripides,
changing his ground, attacks the application of the verb
Karepxofiai (' I return from exile ') to Orestes, because, he says,
Orestes came home secretly, without having duly ' appeased '
by gifts those who were competent to permit his return. ^^^

It does not, says Glotz,^^^ occur to Euripides to say that
no * appeasement ' was possible in the case of Orestes ; and
since, in the eyes of Aristophanes, the deed of Orestes was
regarded as wilful murder, therefore, Glotz argues, Aristo-
phanes may be regarded as implying in this passage that a
wilful murderer could always return to his home-land, if
he happened to be abroad, provided he paid ' compensation '
to the relatives of the slain !

There is a strange but very obvious error in this reasoning.
Glotz has forgotten thai in the early portion of the Choe'phoroe,
in which the verse in question occurs, Orestes has not yet
slain his mother ! At this stage, therefore, he was not a
murder-exile at all. He was merely a political or a quasi-
political exile. Homer and later legend are quite clear in
regard to the nature of this exile. Hence, obviously, the
' persuasion of those in power ' in this passage has no con-
nexion with homicide, and is, for Glotz's argument, irrelevant.
The return of political exiles was a common occurrence in
the Greece of Aristophanes and Euripides. The persuasion
used in such cases may have consisted merely of some kind
of promise or undertaking to obey the existing government,
but it may of course occasionally have taken the form of gifts
or bribes. But the ruling power at Argos which Orestes would
have had to persuade consisted of his deadliest enemies,
Clytaemnestra and Aegisthus. He came home without their
sanction and without their knowledge ; Euripides therefore

*'* Choeph. 3. *»» Kddpa yap ^KOev, ov TTieinv rovi Kvpiovs.

300 Op. cit. p. 315.

186 FROM HOMER TO DRAGON

is right in his opinion that Orestes did not come home by-
permission of the Argive * government.' The verb Karepxo/J'ai,
which normally implies a formal and ' recognised ' retm:n, has
not therefore here its normal meaning. Aeschylus is there-
fore technically in error in his use of this word, but he is right
in maintaining that there is no verbal redundancy in the
verse.

Apart from the irrelevance of this quotation, as an argu-
ment for the legality of ' private settlement,' we may point
out that we have no reason for believing, as Glotz believes,
that Aristophanes regarded Orestes as a wilful murderer.
Aeschylus in the Eumenides makes the Erinnyes say so,^°i
but their viewpoint is shown to be mistaken by an Athenian
Court. Euripides also was aware that not only Homer but
several Attic legends conceived Orestes as very different
from a murderer.^^^ j^ spite of the variety and the confusion
which characterised the Oresteian legends, Aristophanes,
Euripides and Aeschylus were probably well aware that the
Homeric and legendary accounts of the exile of Orestes at
Athens or at Phocis had no connexion with the penalty for
homicide. We can only say of Glotz's reasoning here :

Indignor quandoque bonus dormitat Homerus.

There is another passage in Demosthenes, to which Glotz
seems to attach considerable importance, but which does not
in our view warrant the conclusion which he has drawn from
it. In a speech against Nausimachus, in which an action
for breach of trust is brought by the plaintiff against his
guardian Aristaechmus, who had, fourteen years before,
compromised the dispute by a payment of three talents,
Demosthenes is naturally led, in defence of Aristaechmus
(or his son) the plaintiff, to emphasise the dishonesty of pro-
ceeding with an action where a ' release ' has been previously
granted. Incidentally, the orator happens to refer to * private
settlements ' for homicide in the following passage ^"^ : ' This
I presume you will all acknowledge, that other people have
suffered wrongs before now, of a more grievous nature than
pecuniary wrongs, for example, unintentional homicides,

301 Eum. 317, 428, 496, 656 fE. ^oj /jj^^a, p. 340 ff.

3«3 991. Of. also c. Pantaen. 983.

LEGAL TRANSITIONS 187

profane outrages and many similar offences are perpetrated ;
yet in all these cases the injured parties are finally and con-
clusively barred when they have come to a settlement and
given a " release." This rule of justice is so universally binding
that when a man has convicted another of intentional homicide
and clearly proved him to be " polluted," yet if he afterwards
condones the crime and " releases " him he has no longer the
right to force the same person into exile. Nor again where
the murdered man has released his murderer before he died,
is it lawful for any of the relatives to prosecute, but those
whom the laws sentence, upon conviction, to banishment or
exile or death, if they have been released, are by that word
" release " at once absolved from all penal consequences.'
This passage is repeated verbatim in the speech against
Pantaenetus.^^ Miiller ^05 points out that both passages are
' disputed ' by many scholars. He thinks that there should
only be a reference to involuntary homicide.

It is of course possible that for the word eKovaCov
(voluntary) Demosthenes wrote aKovaiov (involuntary). So
Miiller would emend the passage. But, apart from such a
solution, the very fact that Nausimachus was legally entitled
to sue, even after a ' compromise ' or * release,' proves that
Demosthenes is rhetorical rather than logical. As the passage
stands, it is in direct conflict with the law of Dracon forbidding
' amercement ' after conviction, a law which we have already
quoted.

We are convinced that such * settlements ' were illegal
and criminal in cases of wilful murder. In manslaughter
cases, at least one year's exile was necessary, with or without
ti-ial.306 jjj practice some of the relatives may have drawn
up a ' release ' immediately, and such relatives could not
perhaps take part in expelling the slayer. Our conclusions
on this question will appear more fully later.^^' We have
already referred ^^^ to ' the release ' which was given by the
dying as a most important factor in Greek homicide-law. We
also admit that ' settlements ' were occasionally made, though
not legally authorised, and it is clear that such ' settle-
ments ' could easily be confused with the ' appeasement ' of

»»* 983 (Reisko). »»» Eum. p. 92. »<»« Injra, p. 213.

«" See injra, p. 212 ff. ^o* Supra, pp. 140, 178.

188 FROM HOMER TO DRAGON

relatives in manslaughter cases, especially in the pleadings of
an orator.

We should contrast with this Demosthenic passage another
from the speech against Aristocrates,^^^ in which there is
reference to involuntary homicide. ' If,' he says, ' the accused
be convicted and be found to have done the deed, neither the
prosecutor nor anyone else has control over him, but the
law alone. And what does the law command ? That a
person convicted of involuntary homicide shall on certain
stated days leave the country by an appointed road and
remain in exile until he has appeased certain of the relatives
of the slain . . . above all it is right that the laws should
control everybody and everything.'

Similarly, in his speech against Meidias,^^'' a judge who
accepted money in settlement of a prosecution for ' assault '
is said to have taken no account of the laws : and another man
who ' settled ' a case of assault is said ' to have bidden farewell
to the laws.'

As an instance of Demosthenes' rhetorical skill in the
distortion of the meaning of words, we may refer to a passage
in the Third Phihppic.^^^ The question at issue was really
one of treason, not of murder. A certain Arthmius of Zelea
(in Asia), having distributed Persian gold for political purposes
at the time of the Persian invasion of Greece, was solemnly
declared arLixo<i by the Athenian people. Now a decree of
aTifiCa for treason involved much more severe consequences
than the historical exile penalty for murder. It was the sole
historical survival of collective and hereditary punishment,
and involved not only the traitor but also his family and all
his posterity (auro? re koI 7eVo9).^^ In practice, no doubt,
it was but a trifling penalty to an Asiatic, like Arthmius,
who had no intention of living at Athens or in the Athenian
confederacy. But Arthmius was declared by this decree
to be an outlaw within the territory of Attica or within the
Athenian Empire. If found within this territory, he, or his
descendants, could be slain with impunity. Demosthenes,
anxious to illustrate the patriotism of the Athenians of former
days, compared with that of his contemporaries, by showing

=«» 63 ff. 810 526-7. 8" iii. 44.

3i« Glotz, op. cit. p. 465 ff.; Dem. in Arist. 640.

LEGAL TRANSITIONS 189

the severity with which treason was formerly punished, even
in a foreigner, has recourse to the subtle hypothesis that drt/xo^;
in the decree against Arthmius did not mean merely ' de-
graded ' from civic rights but should be linked up with a verb
reOvaTOi, to form a clause which means ' let him be slain with
impunity.' The word aTifjbo<; in this decree has, he says,
the same significance as it bears in the murder-laws ' in the
case of murderers for whom the legislator forbids a prosecution
for homicide,' where it is said ' drLfj.o'i reOvdrco.' It is true
that the word drtfio^; could be used to mean * unpunished,'
but when the Athenians declared a person drifjuo<i, they meant
by the word ' degraded ' not ' unpunished.' They declared
the person ' dishonoured,' or degraded from civic privileges.
Moreover, in the laws of Dracon as Demosthenes quotes them
the word drifjbo'i does not occur, and the adverb used to
denote ' with impunity ' is vi^iroLvel- Plato also has dvari.^^^
Demosthenes, then, is quite capable of juggling with words
and with the wording of laws, in his desire to secure a
rhetorical victory. But here Demosthenes, without knowing
it, weakens the very point which he desires to emphasise.
A decree of drtfiLa for treason was much more severe than
any penalty in the Attic murder laws. A murder-exile could
be slain with impunity, as a traitor could, if found within
Athenian territory. But his descendants could not ! His
family could remain securely at Athens, in full enjoyment
of civic rights. If the word drifio^ in the decree against
Arthmius meant what Demosthenes asserts that it meant in
the murder-laws, then it is incorrect to speak of the punish-
ment of the traitor and his descendants [avrSt re kuI y€vo<i).
Now what does Demosthenes mean by the phrase ' in cases
where the legislator forbids a trial for homicide ' ^^* ? The
context gives the only possible meaning : he means, in cases
where an already convicted murderer returned to forbidden
territory and could be slain with impunity without trial.

We shall return to this question in our next chapter, when
treating of manslaughter in Attic law, but we may for the
present conclude, as the most probable hypothesis, that in
historical Athens ' private settlement ' as a means of absolu-
tion from homicide guilt was sinful and legally punishable, in

313 Laws, ix. 871b. *** vif^p S>v fiij 5i5iji <p6vov SiKaffiaOai.

190 FROM HOMER TO DRACON

'; all cases where the dying victim did not grant a ' release '
and where a public prosecution was otherwise legally possible.
This hypothesis, if correct, shows that amongst the Greeks,
as amongst the Semites, wergeld was abolished by the religious
doctrine of homicide as a ' pollution,' as an offence against
supernatural beings.

Assuming, as a result of our general reasoning in this
chapter, and for other reasons which will presently appear,
that the historical murder laws of Greece were as universal
and as uniform as the Greek purgation-rites for homicide,
assuming that the novelties which they contain, in regard to
their ideals of punishment, and their insistence on compulsory
State trial, were not the creation of local legislators, but the
product of international Amphictyonies which expressed their
compacts in oracular decrees — compacts which were only
gradually evolved in a compromise between local customs or
desires and a new religious doctrine which was adopted from
Asiatic peoples — we will now proceed to a brief colligation of
the Laws of Dracon concerning homicide, and after giving
such commentaries as these laws may seem to demand, we
will then review the Attic murder-courts and offer an explana-
tion of their origin and evolution.

CHAPTER II
THE DRACONIAN CODE

Restored inscription of 409-8 b.c. and author's explanation : other Draconian
homicide-laws derived from Demosthenes : Plato's code confirms and
supplements these data : classification of Attic homicide laws as follows :
(a) those relating to accidental homicide, to death caused by animals
or inanimate objects ; and to homicide by persons unknown : (b) those
relating to justifiable and to justifiably accidental homicide : (c) those
relating to manslaughter : (d) those relating to wilful murder : some
problems suggested by these laws : origin of confiscation of property :
evolution of State-execution : parricide and kin-slajdng : historicity
of Plato's legislation regarding homicide.

The only direct source of evidence which we possess for the
historical murder-laws of Attica — for the murder-laws of other
Greek States we have no direct evidence at all — is a fragmentary
inscription of the year 409-8 b.c, containing a few lines
written in the old Attic alphabet, which, though ' restored '
in a manner sufficiently satisfactory to render it trustworthy
and intelligible, gives us nevertheless the most rudimentary
information about the Attic murder-code. The real value
of this inscription has been indicated by Lipsius.^ The frag-
ments of laws which are found on the inscription are so closely
identical with the corresponding portions of the Draconian
laws as they are cited by Demosthenes that they must, he
says, be regarded as furnishing a convincing proof of the
validity of the remaining laws which Demosthenes has cited.
Now, these remaining laws are written in the Ionic alphabet,
which was used by Athenian writers in the fourth century
and in the latter half of the fifth century b.c, and it so happens
that the date of the change in the alphabet used in Attic in-
scriptions, namely, the year 403-2 b.c, was also the date of
what Glotz 2 describes as ' la grande r6vision legislative qui
signala I'archontat d'Euclide.' If, then, any changes occurred
in Attic murder-law, in the period which elapsed between

^ Das aiiische Redd, vol. i. p. 17. « Op. cit. p. 377 ; Arist. Ath. Pol. 35.

192 FROM HOMER TO DRAGON

Dracon and Eucleides, it was probably in the year 403-2 b.c.
that such changes were finally incorporated in the written
code. We shall see that there is no reference to the Areopagus
in our fragment, but it may of course have been mentioned in
the missing portion of the inscription which referred to wilful
murder. Pollux and Plutarch ^ state that the Areopagus was
created by Solon. We shall see later * what elements of truth
this dictum may contain. The only change which we believe
to have been made in the period from Dracon to Eucleides was
the isolation of the Areopagus from the general list of the
Ephetae courts.* This change we attribute to Solon, and
with this exception we accept the murder-laws which are quoted
by Demosthenes as the original code of Dracon. We have
already ^ argued against the theory of Glotz that the clause
/AT/S' aiTOLvdv was a Solonian innovation. The alteration
which we attribute to Solon was not properly speaking a change
in the murder-code, but merely a change in the distribution
of pleas in the judicial system. Hence we accept the ancient
tradition ^ that * Solon changed all the laws of Dracon except
those relating to homicide.' The Solonian legislation was less
severe and more humane than Dracon's code. If Solon did
not alter the murder-laws, it was probably because they were,
so to speak, so non-Draconian, because they did not bear the
stamp of Dracon's own peculiar genius. They were, we have
said,' an eclectic codification of the unwritten laws of the Eph-
etae and the Exegetae. EeHgiously consecrated by their joint
tribal and ApoUine inspiration, they stood above the gales of
Athenian poHtical ferment. It was only in the personnel of the
judicial system that a loophole was left open for political intrigue.
In this respect alone was alteration easy and obvious : and in
this respect alone do we suppose that alterations took place.

The original inscription of 409-8 b.c. consists of forty-
eight lines, of which six are undecipherable, and nine others
badly mutilated. We will give here just four of the best lines,
from which the condition of the remainder may be inferred.

11. Kttl £a/X . (.K .pOVO.S .T .1

12. Ktt^ev 8« Tos ^acrtXeas atr . o . (f>o . . . e \

13. cutravTa tos 8 . cc^eras Siayv c

14. I c aScXtj^o . c Hv€9 HttTra. . . . c to . .o v

' PoUux, viii. 125 ; Plutarch, Solon, 19. * Jnfra, p. 269 ff.

'■> Supra, p. 180. « Aristotle, Ath. Pol. 7. ' Supra, p. 143.

THE DRACONIAN CODE 193

The most important portion of the inscription, as restored by
Kohler, is given by Dareste,^ and transhterated into the Ionic
alphabet reads as follows :

11. Kul ea/x. fx iK Trpovotas ktclvt] tis Ttva, ^evyetv, 8l-

12. Ka^eiv Se Toy's ySacrtXeas oiTttuv (f)6vov rj idv Tts amarat ws (3ovX-

13. evaavra, tovs 8e e^eras Stayvwvat, alSeaacrOai 8' ea//, /xev TraxT/p ^-

14. I ■^ dScAc^os i) v^s ciTravTas ^ tok KcoXvovra KpareLV, eav Sc yxr/ ov-

15. TOt w(rt, fJ.exp^ dvei/^toTT^TOS fal dveij/LOV, idv aTravTCS atSeVacr-

16. ^at iOeXwaL tov opKov o/xdcravras. eav 8e tovtwv //.T/Sets ^, ktci-

17. V]/ 8e a/<wv, yvwcri. 8e ot TrevT^/covra kol els ot e^erat d/covra

18. KTetvat, iaeaOwv Se ot </)pdT€p£S, eav c^e'Aw(7t, Se/ca, tovtovs 8e o-

19. t TrevTT^KOvra kol els dpicrTLvSrjv aipetcr^tov. Kat oi Trporcp-

20. ov KTCtvavTcs cv TuiSe t<3 Oecrfiio eve^ecr^wv

26. eav Se' tis t-

27. ov dv8pd</)0V0V KTtivrj rj airios 77 (f)6vov (XTre^j^d/Aevov dyopd% i<f)0-

28. ptaS Kttt dOXiMV KoX UpWV ' Afl(fiLKTVOVLKWV WCTTTCp TOV 'A^I^VatOV K-

29. Tci'vavra ev T0t9 airots ive)(^ea-6dt, Stayiyvwo-xetv 8e tous 'Ec^eVas.

30. TOWS Se dvSpo</)dvovs e^etvat dTroKTetvctv Kat dTrdyctv ev T^t i^/xeS-

31. aTT^i, XvjxaLveaOaL Se /a^, p.^8' dTTOtvav rf hnrXovv de^et'Aeiv oaov dv k-

32. aTaj3Xdij/r]L

37 cdv Se Tts </>€povTa ■^ dyovTu ^ta d8tKws ev6v<; d/xvvofievo-

38. s KTCtv7;t, vT/TTotvet Te^vdvut.^

This inscription has been restored, mainly, from quota-
tions in the speeches of Demosthenes. But before attempting
to translate it, we must point out that even in its restored
form the inscription is archaic and obscure, and the meaning
is not always certain. The first half of the inscription seems
to refer to involuntary or accidental homicide. But the end
of the second line, as it stands, cannot possibly be taken to
refer to accidental homicide, because the verb ^ovXeveiv
usually means ' to plot ' or ' to resolve,' and therefore imphes
an element of deliberation. Wilful murder is not expressly
mentioned, save in so far as the slaying of a homicide exile
abroad is decreed to be equivalent to murder. There is also
a reference to justifiable homicide in self-defence. But most
of the fragment consists of an enumeration of the persons who

• Dareste-Hassouillier-Reinach, I.J.O. No. xxi. 11. 10-19 (vol. i. p. 3ff.);
see also Hicka and Hill, Ok. Hist, hiscript. p. 113 ; Philippi, Areopag, p. 335.

• Philippi, Areopag, pp. 335-337, proposes to restore the end of 1. 12 as
follows : fj Pov\fvffeu)s rhv ail fiaaiKtvaama. For iaiaOoiv (1. Is), Demo-
sthenes gives alhia(LaOwv, c. Macart. 1069. The unrestored inscription has
(o-ecre .. (1. 18).

194 FROM HOMER TO DRAGON

are by law entitled to share in the acceptance of gifts of
' appeasement ' from an involuntary slayer : and of the
judges by whom the various kinds of homicide must be decided.
We do not believe that any judicial distinction is intended
in the use of the two verbs BiKa^eiv and StaytyvoxTKetp.
Both words mean, we think, ' to adjudicate.' There is no
question of preliminary investigation as distinct from final
decision. In regard to the second line, the restoration to?
^ovKevaavTa can only mean ' on the ground of having plotted
(to kill).' Did the restorer mean by this clause * attempting
murder ' (when death did not ensue) or ' contriving murder '
(when death did ensue) ? The noun ^ov\€v<n<; can have
both these meanings, but the verb jSovXeveiv cannot, we
think, denote attempts to kill. If the restorer meant ' con-
triving murder,' such an interpretation is open to the following
objections : (1) ' contriving murder ' ranked with wilful
murder in Attic law, and was tried by the Areopagus, not by
the Ephetae i° : (2) it is rightly maintained ^^ that the presence
of KUi at the beginning of the inscription indicates that a
portion is missing, and it is natural to assume that this missing
portion contained the law relating to the graver kinds of
homicide, including not only wilful murder, but also con-
triving murder. In order to obviate such objections, Phihppi
abandons the verb ^ovkevetv and proposes to read ^ovkevaea)<i
TOP ael ^aaCkevaavra, ' the King-archon for the time being
shall judge concerning attempted murder.' But this suggestion
is open to the following objections : (1) we are compelled
to render Bcayvcovat (1. 13) 'to adjudicate finally,' and we
do not think that it bears this meaning in the inscription ;

(2) TOP ael ^acrCkeiKTapra is a very questionable Greek
rendering for ' he who is King-archon for the time being ' :

(3) while it is true that attempted murder was tried, in
Aristotle's time,^^ in the Palladium, it has no real affinity
with manslaughter. It is impossible to suppose that the
' appeasement ' mentioned in the inscription could have
ever been apphed in cases of attempted murder. It would
be absurd to compensate relatives who had lost nothing,

^o Andocides, de Myst. 94 ; Dem. contra Conon. 1264, 20.

" Gilbert, O.C.A. (Eng. trans.), p. 126 ; Hicks and Hill, op. cit. p. 114.

12 Aih. Pol. 57.

THE DRACONIAN CODE 195

and to ignore the person on whose hfe the attempt was made.
Demosthenes definitely cites ^^ this law of ' appeasement ' as
referring to manslaughter. Hence, as we beheve that the second
line of our inscription refers to manslaughter and as Xevaavra
(sic) is found in the unrestored part of the inscription, we propose
to restore /xr} ^ovjXevaavra instead of &>? ^ovjXevaavra and
understanding Kreivat with alnaTai, we translate ' if anyone
accuses a person of slaying without deliberate resolve.'

We will now suggest a translation of this passage, reading
//^ instead of ob? in the second line.

' And if a man slays a man not with intent (to kill), let
him be put on trial {^€v<y€iv), and let the " Kings " judge of
the causes of death, or, if anyone accuses a person of slaying
without deliberation (fir) ^ovXevaavra), let the Ephetae ad-
judicate. And the " appeasement," if there is a father or
(and) brother (s) or (and) sons (of the slain), let all (accept)
or let one objector hold the field : if there be none of
these, let (the " appeasement " extend) to cousinship and
cousins, provided all consent to be " appeased " having
sworn the (customary) oath : if there be none of these
{i.e. cousins) and if the man slays involuntarily, and the
Fifty-one, the Ephetae, decide that he slew involuntarily,
let ten phrateres permit his return from exile,^^* if they (all)
agree, and let the Fifty-one select these (ten) according to
birth (or rank or merit — apta-rCvSTjv), and let (all) previous
slayers be bound by this law : . . . and if any person slays a
manslayer or causes {i.e. plots) his death while the manslayer
abstains from the boundary markets and from Amphictyonic
games and festivals, let him be liable to the same penalty
as if he had slain an Athenian (citizen) : and let the Ephetae
judge the case : ... it is lawful to kill manslayers or to
arrest them, in our territory {r^fiehanrfi) but it is not lawful to
torture them or to amerce them : the fine payable shall be
twice the amercement : ... if any person slays on the spur
of the moment in self-defence a man who tries by violence
unjustly to rob and plunder him, let his act of bloodshed go
unpunished.'

Phihppi 1* finds the reference to ' the kings ' in this in-
scription rather difficult to explain. He thinks that the

" C. Macart. 10G9. "* iaiadwv from iaivi^i. " Areop. p. 238.

196 FROM HOMER TO DRAGON

allusion can only be to archons, but he feels also that * it
seems inadmissible to assume collegiate functioning after the
archonship became annual.' He therefore views with
sympathy the extraordinary suggestion of Kohler, that T09
/3aa-i\ea<; means Toif? del l^aa-CkevovTa^, that ' the kings '
are * those who from time to time held the office of king-archon.'
The solution of this, as of other difficulties in the inscription,
is, we believe, to be found in a correct analysis of the word
aKwv, which means ' involuntarily ' or without intent.

Let us suppose that a man A caused the death of another
man B. Obviously this event could occur either (1) in an
accidental manner, without the least possible foresight or
culpable neglect, as for instance in a wrestling-match or in a
javelin-throwing competition : or (2) in circumstances which
implied a certain amount of culpable neglect, or d(f)v\a^La,
because the slayer did not take the usual or the necessary
precautions — as, for instance, if a drug was administered,
in illness, to B, and A did not see to it that the drug was of
the proper kind : or (3) in a manner which involved a certain
amount of intent or deliberation, though not necessarily
' malice aforethought,' on the part of the slayer, as, for instance,
if A struck B in a drunken bout, or in a sudden fit of anger,
jealousy or revenge. Plato,^^ in the Laws, makes the clearest
possible distinction between these cases, and so does Antiphon^*
in his Tetralogies. But the Greek words ukcov and dKovaio<;
were applied indiscriminately to all three cases !

The Greeks of historical times actually put on trial
inanimate objects which had slain a man. Why ? Was it
because these objects were regarded as polluted and it was
necessary to discover the extent of the pollution ? We do
not think so, for such objects were either polluted or they were
not. There could have been no question of degrees of pol-
lution. The purpose of such a trial was rather, we think,
to inquire whether the objects were guilty or not. But why
was this question of such importance ? Clearly because there
was a human, as distinct from a divine, interest in such trials.
We suggest that these trials were instituted primarily in order
to estabhsh the innocence of an accused man. In Greek
law, unlike modern law, it was necessary for a man to prove

" ix. ch. 9 ; infra, p. 210 ff. ^* Tetralogies, ii. 4, iii. 2, iii. 3.

THE DRACONIAN CODE 197

his innocence. He could only do this, very often, by proving
that somebody else, or something else, was guilty. We do
not agree with Miiller ^^ and Philippi ^^ in regarding these
trials {ScKal dyfrvxcov) as sham trials. Presided over by five
' kings,' as Aristotle ^^ assures us that they were, they cannot
have been so altogether meaningless and absurd. They were,
we think, almost as important as a modern Coroner's inquest.
Now, who, we may ask, were the five ' kings ' who sat at the
Prytaneum ' murder ' court in the time of Aristotle ? They
were, simply, the King-Archon, and the four Phylobasileis,
or Tribe-Kings, who still survived as the rehgious and judicial
representatives of the old Ionian tribes of Attica. These
kings are therefore the aristocratic descendants of the Elders
who ' sat on smooth stones in a sacred circle,' in the Pelasgian
Age 20 rjy-^Q Prytaneum, as Glotz ^i points out, was the oldest
court at Athens. Coulanges ^^ connects this court with the
worship of the ancestral-hearth ; it was, he thinks, the divine
* hearth-stone ' of the nation, the source of its vitahty, the
symbol of its immortality. Yet this court Miiller and Philippi
regard as a mock or sham-court, in which a number of respect-
able but unintelligent nobles persisted in upholding the obsolete
traditions of a ridiculous past !

We believe that ' the kings ' of the Prytaneum Court are
identical with ' the kings ' of our Draconian inscription. The
first two lines of the fragment refer, in our view, to accidental
slaying, in which there was no degree of guilt attaching to the
human agent, but in which it was necessary to prove that the
guilt was attached to an animal or an inanimate object. We
think it quite probable that such cases were tried at the
Prytaneum.23 We may go so far as to say that such cases
were the raison d'etre of the survival and the historical im-
portance of such a court.2* The legislator, in our inscription,
says : ' If a man slays another without intent, let him be
put on trial, let " the kings " judge of the causes of death '
(BiKa^eLV alrtoiv (povov).

We shall discuss ^5 later the function of the Ephetae judges

" Eum. p. 141. 1* Areop. p. 16. i» Ath. Pol. 57 ; infra, p. 250.

*° Homer, II. xviii. 500. "'Op. cit. p. 190 ; aupra, p. 92.

« Op. cit. pp. 32^0, 173, 439. " 'See ivfra, pp. 201 fl; 256.

" See infra, p. 204. » Infra, p. 263 ff.

198 FROM HOMER TO DRAGON

who are mentioned in this inscription as collaborating with
the kings in the judicial investigation of homicide-guilt, and
we shall suggest an explanation of the fact that they were
invariably fifty-one in number.^^ In regard to the adverb
dpta-TLvSrjv, which means, in general, ' according to excellence,'
we agree with Philippi ^^ that in the context it refers to birth
rather than to social rank. The selection of the phrateres
would probably have been made from ' brethren ' who were
not kinsmen of the slayer, but merely related by ties of
' affinity ' or of local contiguity with him. Plato ^s suggests
that in certain cases of homicide the judges of guilt (and
probably therefore of atonement) should not be akin to the
criminal. The fact that the father and the brothers (we assume
that the singular form aSeA,^o9 includes all the brothers)
and the sons of the slain could, if unanimous, have accepted
* appeasement ' and have legalised the manslayer's return from
exile, shows how far from, and yet how near to, the wergeld
customs of Pelasgian days were the historical murder laws of
Greece. Yet here we have not wergeld proper, but only a
survival, a reflection, of its ancient vigour. Nothing could
show more clearly than this law does the validity of our theory^^
which finds in a ' compromise ' between different forces the
origin of the historical homicide-code of Greece.

Glotz 2^ holds that the objection of a single relative to
' appeasement ' could neutralise the will of the other kinsmen
because, if he were obdurate, he could prevent the unanimity
which was required by law for such return. But we shall
argue, later,^! that while the relatives had considerable legal
powers if they were unanimous, they were probably subject to
superior control if they disagreed. It is difficult to suppose
that one bitter enemy amongst the relatives of the slain could,
in practice, have imposed a penalty of perpetual exile for
manslaughter.

We have discussed ^^ the theory of Glotz that ' private
settlement ' was legal, even for wilful murder. How can Glotz
reconcile such a theory with this Draconian law which pro-
vided for ^ a trial and a verdict even in cases of accidental

" Infra, p. 268. " Philippi, Areop. pp. 138-9.

" Supra, p. 85 f. " Supra, p. 143 ff. ^o Qp. cit. pp. 311, 324.

»i Infra, p. 209 f. ^2 Supra, p. 174 ff. »» But see infra, p. 213.

THE DRACONIAN CODE 199

slaying ? According to our interpretation of the restored
inscription, the relatives of the slain may not always agree,
but the kings and the Ephetae must adjudicate in each case.

Glotz suggests,^* further, that Dracon first introduced the
distinction between murder and manslaughter. Is this the
view which is suggested yrima facie by the restored inscription ?
To us it seems quite obvious that the inscription assumes, as
a familiar fact, an already existing distinction, not merely
between murder and manslaughter, but also between man-
slaughter and accidental slaying. If the distinction appeared
as a legal innovation in the Draconian legislation, surely such
a distinction would have received some emphasis, since it would
have been necessary to enlighten an uncivilised public opinion ;
surely the definitions of the various kinds of homicide would
have been more clearly marked and the penalties more clearly
indicated.

Since the Draconian inscription has been restored from
quotations in Demosthenic speeches, we shall turn to those
speeches for a more complete account of Attic homicide law.
But the Demosthenic references must be supplemented from
other sources — especially from Plato's penal code.

Homicide Laws in Plato and Demosthenes

If we accept the opinion of Coulanges ^^ that the synoekism
of Attica did not abolish the local prytanies and magistracies,
it will be readily conceded that the Athenian city courts,
that is, the Attic State courts, did not necessarily adjudicate
in all cases of homicide. Owing to the civic and religious
aspect of wilful murder and kin-slaying— crimes which involved
the penalty of death or the confiscation of property — we may
feel certain that the State courts had exclusive jurisdiction in
such cases. 3^ But we cannot be sure that the same principle
applied to manslaughter and minor degrees of guilt, except
when such deeds occurred between parties who had only one
civic bond between them, namely, the political union of the
State. Most frequently, we admit, the parties involved would

" P. 302 ; supra, p. 53. " Op. cit. p. 173.

*• See supra, pp. 82, 93.

200 FROM HOMER TO DRAGON

be of such a kind. The rise of political democracy and of a
new nobility of wealth led to the accumulation, in the cities
of Attica, of a vast multitude of persons who did not belong
to any of the old tribes or religious corporations.^' The
common worship of the clan, the phratry and the tribe did
not receive their allegiance. Hence, probably, the courts of
such organisations would not, even if they could, adjudicate
in their case. But there survived in Attica, all through the
historical era, families who still belonged to these more primi-
tive groups. They were the old nobility, the country gentry,
scattered over rural Attica,^^ who continued to obey and,
where possible, to exercise the old jurisdictions of the clan,
the phratry, and the tribe. We have shown that local tribal
courts still functioned, with State-sanction, in historical
Attica.^^ We have quoted a passage *° from Plato which
suggests that some such local courts had power to condemn
to death a person who maliciously wounded one of his parents.

We agree with Miiller ^i and Coulanges,*^ in opposition to
Glotz *3 and Philippi,** in the view that Plato's Laws are
based, in the main, upon the Attic legal codes. There are
certain points in which Platonic law seems independent of
Attic law. Are these variations to be attributed to the fancy
of an idealist or are they rather a supplement, an incorpora-
tion of local and tribal laws which the State codes did not
mention but always presupposed ? So far as homicide at
least is concerned, we prefer the second alternative : and
we shall give at a later stage the reasons for our preference.

In describing the trial of inanimate objects and of animals
which were guilty of human bloodshed, Plato says ^^ : ' If a
beast of burden or any other animal shall kill any person
(except in a public contest) let the relatives (of the deceased)
prosecute the cause of death : and let the wardens of rural
areas {aypovofioL) upon whom . . . the relatives shall impose
this task, decide upon the matter : and let them destroy the
animal (if) condemned and cast it beyond the boundaries
(of the State). If any inanimate object deprives a person of
life (except lightning or such god-sent bolt . . .) either by

" Coulanges, op. cit. pp. 169-176, 252, 360, 367, 376. " /^,. p. 331.

3» Supra, p. 88. " Supra, p. 85. " 3tim. p. 93. " Op. cit. p. 105.

" Op. cit. pp. 180, 234, 537, 594. «* Areop. p. 148. " Laws, ix. oh. 12.

THE DRACONIAN CODE 201

the person falling upon it or by its falling upon the person,
let the nearest of kin appoint the nearest neighbour to act
as judge, and (thus) free from pollution himself and his whole
kindred, and cast the condemned object beyond the bound-
aries.' There is no mention of the Prytaneum Court or of
the Tribe-Kings. We can explain the omission by supposing
that Plato is referring to local courts and local cases of blood-
shed, in which the relatives had not to go outside their im-
mediate neighbourhood to obtain jurisdiction. The ancient
phratry was an assembly of local clans : neighbourhood was
the essential factor in the bond which the phratry religion
represented. The ' nearest neighbour ' in this quotation would
have been a member of the phratry, if not of the clan, to which
the slain person belonged. The duty of prosecution which is
here referred to was no sham duty *^ ; it was a serious religious
obligation. Failure to prosecute would have ' polluted ' the
relatives of the slain.

So far there is no question of any human guilt. But
such a question might have easily arisen. In the Hebrew
murder-code,*' if an ox gored a man to death, it was necessary
to inquire whether the ox had been ' let out ' by the owner,
and whether the ox was previously ' known to be dangerous.'
If so, the owner could have been put to death, unless he ran-
somed his life. Let us suppose, furthermore, that the object
had not ' fallen,' but was such that it must have been ' thrown.'
Two cases might now arise : (1) the ' thrower ' might confess
that he threw the object, say, a stone or a piece of wood, but
at the same time deny that he threw it with the intention of
hitting, much less, of killing, any person : or (2) the ' thrower,'
guilty of intent to kill, might escape undetected, perhaps
concealed by a wall or a boulder or a shrubbery, from which
he had hurled the fatal missile. Thus, the trial of inanimate
objects, and also, but to a less extent, the trial of animals,
might have had a close connexion on the one hand with the
question of accidental homicide, committed by a human agent,
and on the other with the question of ' murder by persons
unknown.' Upon the precise circumstances of each case
would have depended the question whether local magistrates

*' See, e.g., Miiller, Eum. p. 142, and awpra, p. 197.
*' Exodus, xxi. 28-36.

202 FROM HOMER TO DRACON

and tribunals would have possessed jurisdiction in the matter,
or whether it would have had to be referred to the central
State authority at Athens. But to this same authority would
naturally also have fallen the decision as to the guilt of
animals or objects which had caused the loss of human life
within the city of Athens and its environs : and hence we can
understand why the central Prytaneum court had to adjudicate
not only upon guilty animals and inanimate objects, but also,
and with much more serious possibilities, upon murder by
persons unknown.

In the case of objects which could only have proved fatal
if they were thrown by a human agent, a verdict of acquittal,
in regard to such objects, would have logically involved a
verdict of murder by persons unknown ; for, if we suppose
that the object was accidentally thrown, it is probable that
the thrower would have come forward and established the
blood-guilt of the object concurrently with his own innocence.
Demosthenes *^ says in regard to the Prytaneum court : ' If
a stone or piece of wood or iron or anything of the kind falls
upon and strikes a man and we are ignorant who it was that
threw it, but know and have in our possession the instrument
of death, proceedings are taken against such instruments here.'
Plato asserts that the objects mentioned were prosecuted by
the relatives of the slain : but may we not also assume that
a man who had thrown one of these objects without malicious
intent, and who was accused of murder or manslaughter,
would have lodged an accusation against the ' object ' at the
preliminary inquiry *^ before the King-Archon, that is, at the
Prytaneum ? If the Prytaneum found the object guilty,
would not the verdict have prohibited any further proceedings ?
If, on the other hand, the object was clearly hurled by a human
agent with malicious intent, and if the agent was unknown,
proceedings, of a most formal kind, were taken against the
unknown slayer.

Similar proceedings would of course be taken if there
was no ' object ' involved, as, for instance, in case of death by
strangling. Such proceedings are thus described by Plato^" :
' If anyone,' he says, * is found dead and the murderer is not

«8 In Aristoc. 645. Cf. Pausanias, i. 28, Aristotle, Ath. Pol. 57.
*9 avdKpia-is. s" Laws, ix. ch. 12.

THE DRACONIAN CODE 203

known, and is not discovered by careful search-parties, let
there be proclamation against the murderer as in other cases,
and let the heir-at-law {i.e. the nearest relative of the deceased)
proclaim in the market-place that the murderer, whoever he
is, must not, since he is guilty of bloodshed, set foot in any
sacred place in his native State or in that of his victim, or if
he does, and he is discovered and identified, he shall be put
to death and cast unburied beyond the boundaries.' We have
already pointed out ^^ that the object and purpose of trials
for homicide in Greece was not so much the establishment of
guilt, as it is in modern States, but rather the establishment
of innocence. Now, our last quotation from Plato suggests
that a man who came to be suspected of homicide some time
after the crime was committed, and who was never formally
prosecuted and convicted, could, nevertheless, be put to death !
But we shall see ^^ that one refuge still remained to the * un-
fortunate wretch.' He could have pleaded innocence, in the
presence of the avengers, and this plea compelled ipso facto
a recourse to trial : he could of course be arrested on the spot
and imprisoned, but he could challenge a verdict at a court
of summary jurisdiction, the prison court, known as ' the
Eleven,' ^^ and if he proved his innocence to the satisfaction
of more than four-fifths of his judges, his accuser paid a fine
of one thousand drachmae ! Thus, he could not be slain on
the spot by the avengers if he pleaded innocence : but unless he
proved that he was innocent he was ultimately put to death.
Aristotle may be taken to suggest that there was no essential
coimexion between the trial of inanimate objects and the
verdict of murder against a person unknown. He says ^* :
' if the name of the homicide is unknown, the indictment is
prosecuted in general terms against the unknown author ' ; but
in the next line he adds : ' The King-Archon and the Tribe- Kings
have competence in indictments against lifeless objects and
the brute creation.' The juxtaposition of such references is
sufficiently significant. Pollux ^^ is more definite : ' The Pry-
taneum court,' he says, ' adjudicates concerning slayers if they
are unknown, and also concerning lifeless objects that have
fallen and caused death.'

" Supra, p. 196. " Infra, p. 258 ff. ; Arist. Ath. Pol. 52.

»» o'l'4vS(Ka. »« Ath. Pol. 57. " viii. 120, also viii. 90.

204 FROM HOMER TO DRAGON

Though none of these authorities say anything to support,
neither do they say anything which refutes, our opinion that
the Prytaneum court could also try cases of ' accidental '
slaying in which a person accused of manslaughter pleaded an
entire absence of neglect ^® or passion or intent. Our view is
however rendered probable by the fact that preliminary in-
quiries in homicide cases were made in this place which, in
addition to being a court, was also the official residence of the
King-Archon and of the Prytaneis ^' ; but the most cogent
argument in favour of our hypothesis is to be found in the
first two lines of the Draconian inscription if our interpretation
of these lines is correct. We fail to see how the Draconian
reference to ' kings ' as ' the judges ' in cases of homicide
committed ' without intent ' ^^ can be otherwise satisfactorily
explained.

If it be objected that pleas of ' accidental ' homicide were
regularly tried at the Palladium court,^^ we may reply that the
proper function of this court was subsidiary or supplemental
to that of the Prytaneum. In the Palladium the accused in
his plea denied, indeed, any guilt, but he would have found it
difficult to prove his innocence unless he could transfer the
guilt to another person. In the Prytaneum, as we conceive
it, he had often an opportunity of laying the blame upon an
inanimate instrument of death. Such a plea of accidental
slaying involved no question of human guilt, as the accusation
was centred upon an inanimate ' object.' Again, whenever
the plea of the accused differed from the charge of the
accuser, it was the duty of the King-Archon to decide on the
probabilities of the case, before he relegated the trial to its
appropriate court. ^° If, then, a person accused of murder
or manslaughter could advance a plea of accidental homicide
by accusing an inanimate object, the Prytaneum court ad-
joining the official residence of the King and the Prytaneis
would have been at the immediate disposal of the defendant.
No long period of time, such as ordinarily had to elapse between
formal accusations and homicide trials, preceded the trials
at the Prytaneum ; and we may infer from Plato's account
that the verdict of * death by persons unknown ' was normally

66 a(t>v\a^ia. " Pau8. i. 3. 14 ; Plato, Euthyphro, 2 ; Pollux, viii. 90.
68 fjii, iK irpovolai. " Aristotle, Ath. Pol. 57, 3. 6" lb. 57, 2.

THE DRACONIAN CODE 205

brought in by the Prytaneum court before any formal proclam-
ation of the unknown murderer was made by the relatives
of the slain.

Involuntary Homicide

In regard to pleas and charges of manslaughter, we hope
to show that there is a very substantial agreement amongst
the ancient authorities. Once more ^^ we must call attention
to the possibility of local as distinct from central jurisdiction.
Demosthenes ^^ quotes a law of Dracon relating to the ' appease-
ment ' of the relatives of the slain, which is practically identical
with the law which we have quoted from the restored inscrip-
tion. ' Proclamation to (or against) the slayer shall be made
in the market-place (by all relatives of deceased) within the
degrees of cousinship and by cousins ; in the prosecution there
shall act jointly with these, the sons of cousins, the sons-in-law
{ya/j,/3pov<i) and the fathers-in-law {Trev6epov<;), the cousins-
in-law, the sons of such cousins and the phrateres. If " ap-
peasement " is prescribed {herf), if there is a father or (and)
brother(8) or (and) sons, let all (these) be appeased or let one
objector hold the field : if there are none of these, and (the
accused) slays involuntarily, and the Fifty-one, the Ephetae,
decide that he slew involuntarily, let ten phrateres decide
about appeasement, if (all) consent. These let the Fifty-one
choose according to birth (or merit).' We give below ^^ the
Greek version of the latter portion of the law, so that it may be
the more easily compared with the corresponding portion of
the Draconian inscription. In this inscription, there are two
lines which are not found in Demosthenes, namely those which
refer to the role of the ' cousins ' in accepting ' appeasement.'
We must not, however, conclude that the cousins had ceased
to have a voice in ' appeasement ' in the time of Demosthenes,

"1 See awpra, pp. 88, 200 ff.

'2 C. Macart. 1069 ; ivrhs dvei^ji^TTjToj is usually interpreted ' nearer than
cousins ' : we read i.vf^iovs instead of dvei/zioC ; as the word recurs, we trans-
late it, in the second instance, as ' cousins-in-law ' : we interpret avt^ialovs as
sons of female cousins.

«» iav U aiSfcraffdai 5«j?, 4itv juiv nar^p f, fj a.Sf\(phs fj vi(7s,ir(ii'ras ?) rhy
KoKvovTo. Kpare^v . iav Si tovtwv /utj5«Is ^, KTtiuT) 5' Hkoov, yvwfft S' ol irfin-{]KOVTa
Ka\ eh fl oi i(f>irai, HKOvra KTtlvai, alStffdffdwv oi (ppdropes i^v BiXoiai, S(Ka.
rovTovs 5' Oi irevrriKovTa koI (h apiaTifSf}*' aiptlcrOwv.

206 FROM HOMER TO DRAGON

or from the year 403/2 b.c. onwards, or in Solon's time. We
are convinced that the omission is due either to the negHgence
of a scribe or to the dehberate excision by Demosthenes of
unnecessary elements of law in a legal quotation which included
extracts from different laws, most of which are only remotely
relevant to his main purpose in the speech. It would be
absurd to suppose that a legal innovator jumped from the
' small family ' to the neighbour-brethren (phrateres) and
ignored the cousins in an enactment involving the transfer
of property which constituted ' appeasement.' Surely if any
change were made in the personnel of the recipients, the
' neighbours ' would have been first omitted. And we cannot
suppose that cousins had become obsolete since Dracon's
time !

The formal proclamation of a charge of manslaughter
against the accused was the initial act of the * prosecution '
which, after a period of inquiry, after examination of witnesses,
and after various other formalities, ultimately culminated in
the formal trial of the accused at the Palladium court. But,
as it stands, this quotation from Demosthenes suggests, prima
facie, that trial could be dispensed with if the deceased had
near relations who unanimously consented to accept ' appease-
ment ' : and that it was only in the absence of relatives that a
trial took place, after which the phrateres, who were merely
neighbours, negotiated the appeasement. But this prima facie
inference arises from the clumsy and unscientific wording of
the law. That the inference is logically invalid is obvious
from the simple fact that, in the absence of relatives of the
deceased, the slayer could not be tried at all ! When the law
says * if there are none of these,' it must be taken to mean
' if none of the groups which are privileged to decide about
appeasement can be brought to unanimity.'

It is an extraordinary thing, that in this Demosthenic
citation of the law relating to manslaughter there is no certain
reference to the penalty of exile. Are we to assume that such
a penalty was not legally compulsory, that it was merely a
fortuitous eventuality which depended entirely on the attitude
of the relatives to ' appeasement ' ? Are we to suppose that if
all the relatives concerned agreed to be ' appeased ' immediately
after the trial and the verdict, the manslayer could have

THE DRACONIAN CODE 207

remained at home precisely as in the old wergeld days ? We
have no doubt that so far as the relatives of the slain were
concerned, he could have remained at home. But could he
have been admitted to purgation ? Was he not ' polluted '
if the dying man did not ' release ' him ? Could he have
ignored the anger of the gods and of the slain ? The laws of
Dracon do not directly assist us in answering these questions :
on the contrary, by their obscure wording they suggest fre-
quently the wrong answer. But we have seen ^ that these laws
can only be explained as a ' compromise.' In the wergeld
system of tribal Greek societies in pre-historic days, there
was a regular and scientific method of ' appeasement ' which,
in most kinds of homicide, was recognised as a solvent of the
feud. But in the Draconian code ' appeasement ' appears in
a degenerate and insignificant aspect. It is subordinated to
other penalties which are not stated with any degree of emphasis,
for the simple reason that they were universally familiar. All
the arguments which we have put forward in support of our
theory of a ' compromise ' in Attic law compel us to assume
that exile was an essential ingredient of the penalty for man-
slaughter. Such an assumption is implied in the reading eaeadwv
(let them permit to return) occurring in the Draconian inscrip-
tion, Demosthenes, unfortunately, has alhea-daOwv, which
refers merely to ' appeasement.' As we should have expected,
Glotz ^^ and Miiller ^^ interpret this Demosthenic reference as if
it were a logical scientific document : and they accept the 'prima
Jade inference that a person accused of manslaughter could,
as soon as he was publicly proclaimed and banned from all
public and religious intercourse, avoid the ordeal of a trial and
the punishment of exile by simply taking some money with
him to the house of the father, brother and sons of deceased ;
if he succeeded in securing a * settlement ' and procured a ' legal
release,' he could have quietly resumed his ordinary occupa-
tions ! This interpretation, which we have already rejected, **'
is inconsistent with other passages in Demosthenes and in
Plato which we shall now discuss. While we admit that this law
of Dracon does not, unfortunately, mention the exile penalty
for manslaughter as an obvious and incontrovertible fact, yet

«* Supra, p. 143 ff. 95 Op. cil. pp. 3U-31G, p. 324.

«« Eum. p. 93. «' Suiira, p. 174 ff.

208 FROM HOMER TO DRAGON

we insist that it does mention trial as a normal concomitant.
The Ephetae are there, first and last. The Ephetae must decide
the degree of guilt : they must decide that the slayer slew
involuntarily : they must in the absence of relatives or in the
event of their disagreement select the ' phrateres ' according
to birth or merit. This at least is very different from ' private
settlement.'

Demosthenes ^^ quotes another law of Dracon regarding
manslaughter, as follows : ' If anyone shall pursue or plunder
beyond the civic boundary any of those slayers who have
gone into exile and whose property is not confiscate to the
State, he shall incur the same penalty as if he did so inside
our boundaries ' (eV rrj rj/xeBaTrrj). Fortunately we possess
Demosthenes' explanation of this law which, because of its
peculiar expression, requires some such explanation. The
word iTTLTLfia, in reference to property, is opposed to drt/jba
and means ' not confiscated.' Hence, the phrase ' Slayers
whose property is not confiscated ' must refer, says the orator,
to 'involuntary slayers,' because the property of wilful
murderers is confiscated to the State. Thus this Draconian
law, instead of employing the adjective ' involuntary ' {aKova-Lo<i)
as a predicate of ' slayers,' uses two clauses to describe what
a single adjective would have described. Are these two
clauses, then, to be regarded as definitive ; as concerned with
qualities which normally and universally characterised in-
voluntary slayers ? Are involuntary homicides, as a class,
defined as ' those manslayers who have gone into exile and
whose property is State-guaranteed ' {iTrlrifia) ? Or are we
rather to suppose that there were two classes of involuntary
homicides, and that this law refers to only one of these classes —
that in some cases, as Glotz and Miiller conceive the matter,
the slayer bribed the relatives of the slain, and avoided all
further trouble ; and, in other cases, he went into exile ? In
our opinion this quotation suggests that all involuntary slayers
went into exile for a period of time. Miiller holds ^^ that the
duration of this period of exile was not fixed by any law :
that the slayer remained in exile until such time as the relatives
accepted ' appeasement.' We shall discuss this opinion more
fully later, but we may say here that it seems very strange

«* In Aristoc. 634r-5. «» See Miiller, Eum. p. 93.

THE DRACONIAN CODE 209

that the State should have guaranteed protection for the
property of the slayer, and should, at the same time, have
had no voice in determining the limits of his period of exile,
no influence in constraining the relatives of the slain to accept
' appeasement.'

Speaking of involuntary homicide, in another passage,
Demosthenes says '^ : 'If the accused be convicted and be
found to have done the deed, neither the prosecutor nor any-
one else has control over him, but the law alone. And what
does the law command ? That a person convicted of involun-
tary homicide shall on certain stated days leave the country
by an appointed road and remain in exile until he has appeased
certain '^^ of the relatives of the slain {rtva tcov iv 'yevec rod
ireTTovOoTos:) : then it permits him to return, not anyhow, but
in a particular manner, ordering him to sacrifice and be
" purged " and giving other directions which he must carry
out. Eightly, men of Athens, does the law prescribe all this.
It is just to make the penalty of involuntary homicide less
than voluntary, and it is right to prescribe exile guaranteeing
(a person) a secure exodus, and for the returning exile to free
himself from tabu and be cleansed by customary rites ; above
all it is right that the laws should control everybody and
everything.' In this passage we find the usual obscurity of
language and even apparent discrepancies.

Is it suggested that if the manslayer is not accused and
convicted, the law has no control over him ? Glotz and
Miiller would find in such quotations a proof of their theory
of the legahty of ' private settlement.' But it is absurd to
examine as it were microscopically such passages as this. They
must be interpreted, as far as possible, in the light of other
parallel references, and accepted or rejected according to the
criterion of consistency. We admit of course that Demosthenes
is not always consistent ; he was essentially an orator, and as
an orator he placed rhetoric before logic, persuasion before
truth. Bijt in legal quotations he had to respect the legal
knowledge of his audience. Hence such quotations contain
of necessity an important element of truth. In the passage
which we have just cited there is an apparent discrepancy
which militates somewhat against its logical value. We may

" In Aristoc. 643-4. '^ Glotz takes this word too literally, op. cit. p. 31 Iff.

210 FROM HOMER TO DRAGON

ask : ' How can the law be said to be master of everybody
and everything if it guarantees to the relatives of the slain
the right to refuse " appeasement," even if there be only one
dissentient ? ' A law of Dracon prescribed that ' all must
agree or let one objector hold the field.' Was not this objector,
then, Kvpco<; rod avhpoj>6vov ? What control had the law
over such an objector ? On the very face of it, therefore,
this statement of Demosthenes seems inconsistent with itself !
But perhaps Plato will help us to solve the problem.

We have already '^ quoted Plato's account of the penalty
for manslaughter. The legend, which he mentions, ' of priests
of old ' concerning the temporary anger of the dead shows
the religious significance which the exile penalty possessed for
Plato : he understood the meaning of the ' customary rites '
of cleansing and purgation which the manslayer had to perform
on his return. In his penal code, Plato differentiates between
different degrees of guilt in involuntary homicide : and it is
significant that the penalties vary correspondingly — ^not in the
extent of the 'appeasement,' but in the duration of the period
of exile. Thus he says '^ : 'If anyone kills a freeman in a
passion, let him be of necessity an exile for two years.' In
this case there is an element of guilt, but there is no delibera-
tion or intent to kill. He goes on to say : ' He who in a passion
but with a certain degree of intent (jxer e7n/3ovXrj<i) slays a
person, ... let him be an exile for three years . . . being
punished during a longer period because of the greater serious-
ness of his passion.' ' It is difficult,' he continues, ' to give
laws on such matters with accuracy. Of all such matters,
therefore, it is right for the guardians of the laws to have
cognisance : and when the period of the exile shall have
expired for each offender, it is right to send twelve judges
to the civic boundaries who having considered still more
clearly meanwhile the condition (or conduct — irpa^eisi) of the
exiles, will be the final arbiters {hLKa(TTd<i) of the " appease-
ment " and their return home from exile : and let them abide
by the decisions of these magistrates ; and if, after returning
from exile, anyone of these commits again the same offence,
let him be exiled and never return : if he returns let him suffer
in the same way as if a stranger returns ' {Kara rrjv rod ^evov

'* Supra, p. 178. ''* Laws, ix. ch. 9.

THE DRACONIAN CODE 211

d<f)i^cv). Here we have a very different picture from that
which the theories of Glotz and Miiller and some Demosthenic
passages suggest. There is question of manslaughter, but
there is no reference to the power of wranghng relatives to
prevent the exile's return. On the contrary, it is stated that
the ' appeasement ' was controlled by judges who may have
been jphrateres, but were probably not kinsmen of the slayer.
The last line in the passage refers to a law which we have
already '^^ mentioned, namely that which decreed perpetual
exile for manslaughter committed between strangers in any
given State. The penalty for * returning ' in such a case, that
is, for rupture de ban, was death.

In a passage which refers to a case of kin-slaying, in which
the dying man ' forgave ' his slayer (without, however, grant-
ing a ' release '), Plato says '^ : 'If any person of his own
accord absolves anyone for such a deed, let the purgations be
made for the slayer as if his act had been involuntary, and let
one year be the term of his absence from the country according
to law.' The theory of the legality of ' private settlement,'
before or after trial, cannot be reconciled with this quotation.
The phrase ' according to law ' suggests that Plato refers
to actual Attic law, and not to an ideal law of his own
creation.

Plato adds that in such a case the slayer can never resume
his ordinary domestic life, even though he recovers his civic
status. Similarly, for the slaying in a passion of a husband
by his wife, or of a wife by her husband, the penalty prescribed
is three years' exile, but such persons, even though not akin
in blood, cannot return home to share in common domestic
rites with their children, or to eat at the same table. In this
law we see clearly the operation of a local or domestic * pollu-
tion 'which debars the slayer from his family hearth, and which
is quite distinct from the civic pollution which debars him
from certain definite States. It is important to observe that
with the local or domestic pollution no civic or international
law has ever interfered ; whereas civic pollution has been
regulated by law according to the varying degrees of guilt,
and the claims of the relatives to ' appeasement.'

Plato imphes that one year was the normal period of

'« Supra, pp. 103, 173. " Lam, ix. ch. 9.

212 FROM HOMER TO DRAGON

exile for manslaughter. The Greek verbs aireviavTL^eLv '®
and airevLavreiv convey the same implication. Can this fact
be reconciled with the law of Dracon ? We believe that it
can, but only by distinguishing between theory and practice,
between local and central courts, between local and central
religion.

Plato shows how local judges would have solved the
difficulty caused by recalcitrant relatives. We have seen "
that Plato decrees perpetual exile for manslaughter between
strangers. But exile from what State ? Surely it was only
from the State in which the deed took place : and the reason
for this penalty was probably the fact that the relatives of the
slain did not live in the State where the deed took place :
and hence no * appeasement ' of these relatives could formally
admit him to that State, though he could be admitted through
' appeasement ' to his native State, if the slayer and the slain
were both citizens of the same State. Thus the tendency of
the pollution doctrine, apart from the claims of the relatives
of the slain, was to exact perpetual exile for manslaughter.
Plato decrees that any citizen had the right to prosecute a
stranger for manslaughter, but not that he had a right to
accept ' appeasement.' '^ Hence, by a strange paradox, the
relatives of the slain provided a medium by which the man-
slayer regained his civic status. Yet, in the case of involuntary
kin-slaying, the slayer could never re-enter his home ! We
believe that these decrees are not Platonic creations, but were
found in Attic law, written or unwritten. Can they be
reconciled and made intelligible ?

We saw '^^ that wergeld was not admissible for kin-slaying
in the Pelasgian tribal system. Outside the kindred, how-
ever, wergeld permitted the slayer to remain at home or to
return after a time, if he could not pay the full were. A
comparison of such customs with the historical homicide code
suggests quite obviously a compromise, in which the seventh-
century pollution- doctrine failed to impose its will on the rela-
tives of the victim because of a real or presumed * forgiveness '
on the part of the slain. Without the anger of the dead, the
pollution doctrine could not operate. ^° Apollo himself could

'• Xen. Mem. i. 3. 13 ; see Miiller, Eum. p. 94. " Supra, p. 163.

^8 Plato, Laws, ix. ch. 8. '» Swpra, p. 8. »<» Supra, p. 146.

THE DRACONIAN CODE 213

not enforce it. The relatives of the slain had a just claim to
be regarded as the best interpreters of the anger of the dead.
It was in this crevice, so to speak, in the doctrine of pollution
that the kindred of the slain drove the thin end of their old
tribal wedge. They claimed the right to determine the period
of exile for manslaughter, but for manslaughter only : for in
such cases the anger of the dead could not be regarded as
perpetually implacable. In theory, then, these relatives had
the right to consent to ' appeasement ' at any time ; but in
deference to the dead their consent could not become effective
before a year had passed. They could in theory delay their
consent indefinitely, but delay was less probable in local than in
central jurisdiction. They were compelled by law to prosecute
the manslayer in court if the slayer denied his guilt ; but if
he admitted guilt, no trial was necessary ; and it was only in
such a contingency that ' appeasement ' could occur without
trial : nevertheless a year's exile was still necessary before the
relatives could accept * appeasement ' and finally remove the
barriers to ' purgation.' The fact that the involuntary kin-
slayer could never re-enter his home we attribute to the
tradition of Pelasgian domestic religion.^^ This solution recon-
ciles, we think, the law of Dracon, the code of Plato, and
most of Demosthenes' references. It is also in harmony with
our general theory ^^ of the compromise between ' pollution,'
tribal wergeld, and State law, which is expressed in the murder-
code of historical Greece.

Justifiable and Justifiably Accidental Homicide

In our analysis of the Attic laws concerning justifiable
homicide, we will begin by drawing a distinction between
three possible contingencies. First of all, we can conceive
that blood has been shed without any intent to kill, but
with a certain element of neglect {a<^v\a^La), which has however
been expressly mentioned and declared to be justifiable in
law. Secondly, we may suppose that there was a certain
degree of intent to kill and a certain amount of deliberation,
but also that there was an extenuating element of impulse

«i Swpra, p. 108. " Sujyra, p. 143 ff.

214 FROM HOMER TO DRACON

or passion which has been decreed guiltless, in certain cir-
cumstances, by the law. Thirdly, we may suppose that the
person slain was an outlaw or a State-criminal, whose life
was forfeit by the laws of the land, and whose citizen-slayer
was declared to be justified in advance.

Homicide of the first class has so much in common with
ordinary accidental homicide that we think it probable that
they were often confused in Greek thought, if not in law.
The words aKcov and aKovaio^ which, we have seen,^^ were
applied indiscriminately to denote cases of different degrees
of guilt in accidental slaying and in manslaughter, were also
used to denote such forms of accidental slaying as were
expressly ' justified ' by law. Perhaps this confusion may
help to explain still further the apparent discrepancies in
Demosthenic references to ' release ' and ' private settlement.'
For the case which we are now discussing, there was no penalty,
no exile, or loss of property, not even a fine. Pleas of justi-
fiably accidental homicide were doubtless frequently made in
answer to charges of manslaughter or of wilful murder. The
King-Archon (and perhaps also the Tribe Kings) had to decide
between the merits of the ' charge ' and of the ' plea.'
Obviously, it was always as a result of a ' plea,' never as a
result of a ' charge,' that homicide cases were referred to the
Delphinium court.

Justifiable homicide of the second class has close affinities
with extenuated manslaughter, or slaying in a passion. The
essential difference lies in an express legal justification in one
case, and the absence of such a justification in the other.
When we come to analyse the Oresteian legends of Attic
tragedy we shall find ^* that the close affinity which exists