Book 2 — CHAPTER II THE DRACONIAN CODE (continued 2)

Again, Livy tells us[206] how a certain Cassius, a consul, as soon as he went out of office, was sentenced to death and executed. ‘There are some who say that his father inflicted the punishment, that after putting him on trial in private he scourged him and put him to death.’ Such passages illustrate the well-known patria potestas of a Roman father. Yet even in Rome the State could interfere in such matters, since we find that a Decemvir ordered the arrest and the imprisonment of a certain Virginius who had slain his daughter.[207] Rome, however, can give us no really valid evidence for Greek law. The power of a father to sell his daughter as a slave, which Solon abolished, was a remnant of patria potestas.[208] But Solon’s interference in such matters proves that the sacred jurisdiction and power of the family had been already in his time invaded by the State. All matters which concerned public morality and utility, all matters which were affected by national or international religion, had naturally passed out of the exclusive control of the kindred. We have already indicated[209] the survival in historical Greece of clan-courts and of local religious corporations. We have also quoted Plato[210] for the operation of local jurisdictions in cases of ‘wounding in a passion,’ between members of the same kindred.

But the religious doctrine of pollution placed the actual slaying of kinsmen on an altogether different plane. Moreover, we believe that the evolution of State execution affected the question of the penalty for kin-slaying. Demosthenes, in two passages[211] recently cited, makes his client Diodorus say that if Androtion had succeeded in the indictment for impiety which he had brought against the uncle of Diodorus, he himself, as a result of the indictment, would not only have lost his property but would also have lost his life. Now such a confiscation of property must have been a State confiscation: and the only authority which could decree or execute such a confiscation was a State court and State officials. It is therefore natural to assume that the death penalty would also have been carried out by the State.

Plato describes, in hideous detail, the execution by public magistrates of the slayer of a kinsman.[212] Even for malicious wounding within the family, the penalty of death is decreed.[213] For wounding in a passion, a fine could be imposed by the parent or the male kindred of the offender: but if a parent was wounded by his child, death could be inflicted, even by a tribal court, in which none of the relatives of the child could act as judges.[214]

Lysias[215] makes one of his pleaders repudiate, most emphatically, the suggestion that parricide was not criminal and illegal. The word ἀνδροφόνος, or homicide, includes, he says, implicitly if not explicitly, the slayer of a parent. Pollux,[216] however he be interpreted, must be regarded as implying that parricide was a crime, which was probably punished by the Areopagus. We have quoted the relevant passage already.[217] Pollux is describing the Areopagus, which was the admittedly regular court for wilful murder. He refers to the preliminary affidavits, and, speaking of the final trial, is represented by the text of Dindorf as saying ‘After the first speech it is lawful to go into exile—if one has slain one’s parents’! Now, if we suppose that this text is correct, it would follow that parricide was a State offence which was judged by the Areopagus State court. But the same conclusion can be maintained even if, as we believe, the text is incorrect. We believe that Pollux wrote not εἰ but εἰ μὴ, and that he means ‘unless one slays one’s parents.’ He clearly implies that parricide also came before the Areopagus.

Finally, the Euthyphro of Plato, which represents a man actually bringing an indictment or a charge of murder against his father, cannot be explained on the assumptions of Glotz and Caillemer. The weakness of Euthyphro’s legal position is pointed out by Socrates,[218] namely that Euthyphro was not a kinsman of the slain. The threatened indictment was a δίκη, not a γραφὴ. It was a regular charge of homicide which was lodged with the Archon Basileus.[219] Now Socrates’ objection would not apply if the slain man had been a kinsman of the accuser: and this would necessarily have been the case if the father of Euthyphro had slain a member of his own family or kindred.

We have seen[220] that in the days of private vengeance and of tribal society, kin-slaying was normally punished by exile, as wergeld was impossible, and kinsmen revolted against the infliction of death. In those days, kin-slaying was normally a matter for the jurisdiction of the clan. In historical times, kin-slaying was punished by death and the confiscation of property—and these penalties can no longer be regarded as in conflict with clan-psychology, since the slayer was prosecuted in a State Court and was executed by State officials. All these facts are therefore quite consistent and they are mutually explanatory. It was the doctrine of pollution and the evolution of civic government which produced so drastic a revolution in the punishment of kin-murder.

We can now understand quite clearly the meaning of Plato’s reference to the penalty of kin-slaying: ‘Of a kindred blood defiled,’ he says,[221] ‘there is no other cleansing, and the pollution cannot be washed away until the life of the slayer shall atone for kin-blood by kin-blood and appease and set to rest the anger of all the kindred. It is proper that a person be restrained from such deeds by the fear of such punishments from the gods.’ Euripides also expresses the same sentiment in the Medea. The Chorus say[222]:

How then do we suppose that the murder of a husband by his wife, or of a wife by her husband, was punished in Attic law? Such parties were usually not akin by blood. Yet they lived in the same house and they ate at the same table.[223] The penalty in this case was, we think, precisely the same as the penalty for ordinary wilful homicide. The slayer had the option of going into exile for ever if he fled before conviction, or of suffering death at the hands of the public executioner if he did not flee. Hence, perhaps, Euripides[224] is thinking of the historical Attic law when, in the Orestes, he makes Tyndareus assert that Orestes should not have slain his mother, but should have put her on trial and have banished her as an exile for ever. We must assume that in the event of exile the property of such slayers was confiscated, though it seems very cruel that children whom murder and vengeance had deprived of both their parents were compelled in addition to forfeit their patrimony.

The malicious wounding of a husband by his wife or of a wife by her husband did not, apparently, involve such a confiscation but did involve perpetual exile. This identical penalty is applied by Lysias to ordinary cases of malicious wounding.[225] Hence Plato is quite authentic when he says[226] ‘If a woman wounds her husband with intent to kill, or a husband his wife, let (the offender) undergo a perpetual exile ... let guardians manage the property and take care of the children as if they were orphans.... In case there are no children let the kindred, as far as cousins, on the male and female side, come together and appoint an heir.’

It is in cases of involuntary homicide or of homicide in a passion, between man and wife, that the influence of the pollution doctrine is especially apparent. The penalty for such deeds, as Plato assures us, was perpetual exile from the family and temporary exile from the State. Now, temporary exile, in ordinary cases of involuntary homicide, was terminated by the ‘appeasement’ of the relatives of the slain. The primeval tribal law in which ‘appeasement’ ultimately originated recognised the payment of material retribution in cases of husband-wife slaying. But the ‘pollution’ doctrine prevented the survival, in historical times, of ‘appeasement’ in cases of this kind. Plato[227] assures us that such offenders could never, in any circumstances, return to dwell in their old homes with their children.

We have now completed our review of the murder-laws of Dracon. We have not referred in this connexion to the law which related to the seizure of hostages in default of extradition (ἀνδροληψία) because this law has already[228] been discussed and explained. We have also omitted many legal details, of which some will find a place in our next chapter, which deals with Attic murder-courts, and others have not been considered sufficiently important or sufficiently relevant to our main purpose—which is, in effect, the philosophical explanation of the origin and evolution of Greek homicide law.

There is one point which, in conclusion, we wish to emphasise, namely the value and the importance of the Platonic code when considered as a supplement to the laws of Dracon in cases where they do not directly reproduce them. It is easy to assert that Plato is an idealist when his ideas do not correspond with one’s pet hypotheses.[229] But what, we may ask, was the source of Platonic idealism, and was this source of such a kind that it would have affected the historicity of his homicide-laws? The idealism of Plato was, we think, derived from the Orphic-Pythagoreans, and also to some extent from the Eleatic philosophers. His theory of ‘ideas’ originated, as Burnet has shown,[230] with the Pythagoreans. So, Glotz rightly says[231]: ‘l’eschatologie de Platon présente une grande cohésion. Elle vient de l’orphisme.’ Was there, then, in Orphism any special doctrine which could have affected Plato’s attitude to homicide? Could such a doctrine have imported new ideas into Plato’s legislation? It is true that murderers were excluded from the famous Mysteries at Eleusis when those Mysteries came under Orphic domination, from 400 B.C. onwards.[232] Murderers were punished by everlasting fire in the Orphic Tartarus,[233] and parricides and matricides were singled out for the most severe punishment. Aristophanes has a line[234] which has been interpreted as referring[235] to human bloodshed,

but the φόνοι which are here mentioned denote the sacrificial slaying of animals, to which the Orphics objected. Horace[236] puts it more clearly when he says:

Orphism, then, stands in the same relation to the Apolline religion of pollution as Christianity does to Judaic religion. It supplements the punishment which angry deities send upon criminals here on earth by a further punishment hereafter. But, considered as modifying factors in the evolution of social law, the Judaic and the Apolline doctrine of pollution are incomparably more important. We have seen that Christianity accepted wergeld in Europe,[237] while Judaism abolished it in Israel.[238] Orphism, as we conceive it, had no effect upon the murder-laws of Greece. Plato was, naturally, sympathetic towards the Orphic religion: still he does not place much trust in merely posthumous punishment for so great a crime as homicide: and hence in his penal code he falls back on the historical Greek laws which were the offspring of Apolline religion, because there was no other code available. Thus he says[239]: ‘Let our prelude include a “myth” which many of those who seriously take to heart such matters in the mysteries have heard and believe firmly, namely, that for such persons (i.e. murderers) there is a punishment in Hades: or that it is necessary for them to come back hither to suffer punishment according to nature (by a natural law), to suffer from others what they had done themselves ... for him who is persuaded ... and who terribly fears such punishment, there is no necessity to frame a law, but for him who is not persuaded let the following law be written thus.’ Here Plato, as a prelude to his homicide legislation, definitely states that these laws are intended for the general public and not for Orphic votaries. So again[240] he says: ‘Death is not the extreme punishment: the pains spoken of in regard to such persons (i.e. murderers) in Hades are still more extreme: though they who tell such truths accomplish nothing by way of deterrence (ἀποτροπή) for people of such a character: otherwise there would never have arisen matricides and impious attacks on parents. Hence the punishments here in this life for such crimes should rival in efficacy those in Hades.’ Here we see that, despite the Orphic sympathies of Plato, he has to adopt as his legal model the historical Greek murder code which was mainly derived from the Apolline ‘pollution’ doctrine. He has to appeal to the religious sanctions of Apollinism, just as in modern society Christian preachers appeal to Judaic doctrines when a more ideal and higher conception of religion fails to deter the shedder of blood. The homicide code of Plato was therefore not affected by Orphic ideas. It was based on the Attic code of Dracon, and also on local traditions, or, as Glotz would describe it,[241] ‘la vieille jurisprudence des exégètes.’

FOOTNOTES