Note 154 — Chapter V · THE CULT OF SOULS

Such prohibition against taking a ποινή for murder is made by the Law ap. D. 23, 28: τοὺς δ’ ἀνδροφόνους ἐξεῖναι ἀποκτείνειν . . . λυμαίνεσθαι δὲ μή, μηδὲ ἀποινᾶν (cf. § 33 τὸ δὲ μηδ’ ἀποινᾶν· μὴ χρήματα πράττειν, τὰ γὰρ χρήματα ἄποινα ὠνόμαζον οἱ παλαιοί). In spite of this Meier and others unjustifiably conclude that murder could be indemnified by payment of money, from the illegal practice mentioned in [D.] 58, 29: this speaks rather for the contrary. They have more appearance of justification when they appeal to Harp. (Phot. Suid., E.M. 784, 26; AB. 313, 5 ff.), s.v. ὑποφόνια· τὰ ἐπὶ φόνῳ διδόμενα χρήματα τοῖς οἰκείοις τοῦ φονευθέντος, ἵνα μὴ ἐπεξίωσιν. On the strength of this Hermann, Gr. Staatsalt.5 104, 6, says, “even intentional murder could be absolutely indemnified.” Nothing is actually said of φόνος ἑκούσιος here nor do we anywhere learn that the payment of ὑποφόνια on the occasion of a murder was ever a formally legalized proceeding. It remains possible, and even in the circumstances more probable, that Dinarch. and Thphr. in the passages on ὑποφόνια quoted by Harp. referred to the practice as one forbidden by law, though it might be, on occasion, an actual fact. If we had only the gloss of Suidas—ἄποινα· λύτρα, ἃ δίδωσί τις ὑπὲρ φόνου ἢ σώματος. οὕτως Σόλων ἐν νόμοις—we might have concluded that payment of such blood-money was allowed in Athens and mentioned in Solon’s laws as allowable. This would be quite as justifiable as to argue as above from Harp. s. ὑποφόνια. We know, in fact, that the law referred to the ἄποινα and ἀποινᾶν as forbidden things, from the passages already quoted from Dem. (23, 28–33). From these the gloss was itself probably derived.