Note 148.1 — The Evolution of Religion

Now when we examine certain details of Attic law, together with certain expressions of sentiment concerning homicide in the classical writers of Attica, we see the clear imprint of its origin. Accidental homicide was as gravely regarded by the Athens of the fourth century as by the old Hebrew code: such homicides must fly over the border, but if they went by a certain road, the State refused to allow the avenger of blood to follow them: they must remain in exile until they have won the forgiveness of one of the kinsmen of the dead.148.1 We may suppose that the kinsmen are regarded as taking up the feud of the ghost, who is likely to be vindictive, even when the slaying was accidental. Finally, when the pardoned homicide returns he must go through elaborate purifications. These latter were to wipe off the miasma, not to ease what we might call the burden of conscience. And the community were obliged to expel temporarily even a perfectly innocent man, because of their fear of the wrath of the dead. This dread of the ghost is appealed to by an Attic orator as a motive that should influence the judges to condemn the prisoner.148.2 The first legal preliminary in a case of murder, which reveals clearly the religious origin of the State law, was the solemn proclamation, made by one of the relatives holding a spear at the funeral, that the murderer should keep aloof from all the holy and public places of the community.149.1 And Antiphon strongly expresses the popular sentiment that the unpunished murderer pollutes the public altars and vitiates the atmosphere of the city:149.2 and the whole of Plato’s legislation149.3 concerning homicide is based on the idea of the miasma arising from bloodshed, and is quite in accord with Attic law. The exile of the murderer purges the city as well as his execution; therefore the accused was allowed to go out of the country before the verdict.149.4 The contagion was worse under a roof than in the open air; therefore the Athenian judges insisted on trying homicide in an unroofed court, “lest they should be under one roof with the slayer.”149.5 Also it is part of primitive animistic belief that such miasma could cleave to things which had caused the death of a man: hence the inanimate object such as an axe or bar of iron might be solemnly tried and, if found guilty, would be thrown into the sea to rid the State of infection:150.1 the same superstition explains the old English law that a waggon which ran over a man and caused his death should be given to God—“deodand”: that is, it was to become a perquisite of the King, who represented God.