Early Athens, like other primitive communities, was ruled
not by laws, but by customs. The custom in any matter was
what everyone did under similar circumstances. As Plato says!
"'They [primitive men] could hardly have wanted lawyers as
yet; nothing of that sort was likely to have existed in those
days, for they had no letters at this early stage; they lived
according to custom and the laws of their fathers, as they are
termed." I In other words, in the absence of formal laws,
justice was synonymous with precedent. At first, crimes, which
later were looked upon as offenses against the state, were merely
private affairs. Thus murder was only a private offense against
the victim and his surviving kinsmen. To have slain a man was
a misfortune, for it entailed serious consequences. In the Home-
ric civilization the kinsmen might or might not accept wergeld
as compensation for the loss and the idea of accepting it was'
regarded as a perfectly justifiable alternative to exacting blood,
vengeance. By giving presents to the relatives of the murdered
man, the offender not only could repair the loss inflicted upon'
them by the death of their kinsman, but he could also appease
their anger, as the pleasure of revenge would tend to alleviate
their indignation' and loss and the humiliation of their enemy
would help to heal their resentment. Furthermore, the accept-"
ance of compensation was a matter of expediency; for it saved
the injured party from the risks involved in carrying out the
blood-feud, i. e., the uncertainty of the issue. and similar con-
In the Homeric poems, then, the murderer either paid wer-
gcld and was suffered to remain in peace at home or he had
to flee the country.2 Thus Ajax reproaches Achilles. for not
wishing to be appeased: "Yet doth a man accept recompense
' Laws, III 68o A (jowett's Translation).
'Pausanias, 1, 28, io, in mentioning the trial of Theseus for justifiable
murder, says: "In former days, before the acquittal of Theseus, the custom
was that every manslayer either fled the country, or if he stayed, was slain
even as he slew." (Frazer's Translation.)


of his brother's nmurderer or for his dead son; and so the man-
slayer for a great price abideth in his own land, and the kins-
man's heart is appeased, and his proud soul, when he hath
taken the recompense." 3 It seems, however, to have been safer
to flee than to try to pay the recompense. Thus Odysseus says:
"For whoso has slain but one man in a land, even one that
leaves not many behind him to take up the feud for him, turns
outlaw and leaves his kindred and his own country." 4 Even
then he might be pursued by the relatives or friends of the
slain man.5 The Homeric poems contain several iistances of
men who became outlaws for having slain their man.6 Only
by slow degrees and long after Homeric times did such a simple
notion as blood revenge yield to a system of punishment wherein
the private avenger became metamorphosed into a plaintiff before
a judge appointed by the community.7 It was a long time before
the state took the initiative in counselling the people to do what
was customary and in seeing that this was done. This was
largely for the reason that for a long period of time there was
little semblance to a state; but it was also partly due to the fact
that slaves of custom were not averse to doing what was usual
and so needed no incentive. However, in course of time, breaches
of custom might occur which would be serious enough to shock
the community as a whole into enforcing the existing custom.
When such breaches became habitual, customary laws (nomoi)
would follow. Since not everyone would know exactly what
these laws were, a privileged class would arise which possessed-
$Iliad, IX, 632 sq. (Translation of Lang, Leaf and Myers.)
Odyssey, XXIII, x8 sq. (Translation of Butcher and Lang.)
1E. g. Odyssey, XV, 2A
4 E. g. Odyssey, XV, 272 sq., where Theoclymenus flees fbr having slain
a kinsman; Iliad, II, 66r sq. where Tlepolemus slays his granduncle and
flees over the seas; ibid., XV, 429 sq., where. Lycurgus slew a man of
Cythera; Odyssey, XIII, 259 $4.. where Odysseus deceitfully gays he has
become an outlaw for slaying Orsilochus. A homicide trial was represented
on the shield of Achilles, Iliad, XVIII, 497-508; strife had arisen between
two men as to the price of a slain man; the slayer avows he has paid all,
but the victim's kinsman says he has received naught; elde'rs, seated on a
circle of polished stone, are the judges and, strangely enough, two talents
of gold lie in the midst; on their significance, cf. Thonissen, Le droit pinat.
de la ripublique Athcnienne (i875), p. 27.
'See Leist, Graeco-ilalische Rechtsgcsichte (1884), See: 5o, especially
PP. 375 and 381.


this knowledge exclusively. It was in this way, then, that laws
came into being and the earlier blood-feuds and blood-money
were *slowly abolished. Still later different degrees of guilt were
distinguished and, finally, when the alphabet became known, these
customary laws were written down on stone and thus codified
law came into existence. This,- in the case of Athens, first
came about, according to Aristotle," in the days of Draco. A
written code was the necessary condition of exact justice and,
furthermore, it was the first concession, historically speaking,
which was wrung from the aristocracy by the people.
The ease with which blood-money was accepted arfiong the
Homeric Greeks has been explained as resulting from the belief
in the disembodied existence of the soul in Hades, where it was
supposed to live on without strong passions and without power
to injure the home. The later Greek custom of demanding a
life for a life, on the other hand, has been explained as the
result of the change in ideas of the hereafter, which slowly
developed after Homer's time and which attributed a far greater
activity to the dead. Now the soul carried below a longing for
revenge and it could still hover about its earthly haunts and
annoy its slayer and incite its kinsmen to avenge it. This idea
that the ghost of a murdered man could still terrify the living
is a myth common to the folklore of many peoples and it seems
to have been held in Athens during the fifth and .fourth cen-
turies B. C. 9 Thus Orestes, in the Choephorae of Aeschylus,
says Apollo had told him that if he did not slay his father's
murderer he must atone for it with his life and that the Furies
springing from his father's blood, would assault him:
"For the dark shafts of those beneath the earth,
(The slain who cry for vengeance to their kin.)
With frenzy wild, and groundless fear at night,
Disturb and harass his distracted soul:' etc. 0
'The Constitution of Athens, 4r, 2. In this passage he says that Draco's
laws were the first to be written down.
' So E. Schmidt, Die Ethik der ai"ten Griechen (1882). I, 1[25 sq.; E.
Rohde, Psyche (1894), pp. 8 sq., 238 and 26o; cf. his Paralipomena
(in Rheinisches Museum fir Philologie, 1895, pp. g sq.); 0. Mfiller
Aeschylos' Euntenden, p. x45, who believes with Rohde that wergeld grew
out of the expiation of the angry spirit by the sacrifice of an animal.
"286-287 (Swanwick's. Translation).


He thus attributes a Fury or Erinys to the heinous crime of a
man who neglects the duty of avenging the soul of the slain
man; in other words the dead man's soul turns its anger against
its relative. Plato has a similar notion, that if the next of kin
does not proceed against the murderer, pollution shall fall upon
his head and the victim shall call for vengeance upon him."1
The Homeric notion of blood-revenge was not peculiar to
the early Greeks but was common to many of the early Indo-
European peoples and is still found among most primitive folk.
Before tracing the development of homicide laws among the
Greeks it will be instructive to cite examples of this early idea
elsewhere. 12 There are indications of it in early India, though
no mention of it is found in the Sutras.13 In China Confucius
affirmed the duty of avenging the murder of a father or a
brother. 14 In Japan the murderer was expected to be slain by
the surviving relative or else to flee, in which latter case he was
despised by his companions. 1 Among the ancient Iranians blood-
revenge survived the establishment of courts. 10 Among the
Hebrews it existed during the period of the Judges and Kings
and even later. Wellhausen says that under the Old Kingdom
"The administration of justice was at best but a scanty supple-
ment to the practice of self-help." 17 In the book of Numbers,
the Lord said to Moses: "The revenger of blood himself shall

"Laws, IX, 866. On page 865lhe mentions "an ancient tale"to the
effect that the murdered man's soul when newly dead, is angry with his
slayer, and when he sees him walking about in his accustomed haunts,
becomes disordered: this disorder of the soul of the slain man, helped on
by the guilty recollection of the murderer, is communicated to the latter
with such overwhelming force that he has to get away for a year from the
places belonging to the victim.
"Most of the following examples and authorities are taken from
Westermarck, The Origin and Development of Moral Ideas i, (z9o6), ch. XX,
pp. 477 sq.
"See Leist, Alt-arisches Jus Gentium (1889), p. 422.
" See Legge, The Chinese Classics (1893-1895), i, ii.
" See T. Dautremer, The Vendetta or Legal Revenge in Japan, in Trans-
actions Asiatic Society of Japan, XIII (1885), p. 83; a similar custom pre-
vailed in Corea: see W. E. Griffs, Corea (1882), p. 227.
" See Geiger, Civilization of the Eastern Iranians in Ancient Times
(1885-1886), II, 31 sq.
" Prolegomena to the History of Israel,p. 467.

by D. LXXX and LXXXIX. Efterladle Skriften (Christiania. when he meeteth him he shall slay him. W. The History of Civilization In Scotland. pp. 95. 1876). in the Jewish Quarterly Review (new series. 'See Mackintosh. 2-. Amram of the University of Pennsylvania Law School. Des attributions judicaires de I'autorith pub- lique chez les Celtes. in order that they might deal a more unhallowed and effective blow to enemies. p. Early History of Institutions (1875)." 38See Sir Henry Maine. Kemble. cf. No. TIlE HOMICIDE COURTS OF ANCIENT ATHENS slay the murderer. 21.See the article on Retaliation and Compensation Among the Hebrews. Among the mod- ern Arabs the slayer owes his blood to the family of the victim: see Burch- chardt. Pt. Cf. Iecture IT. the settled amount. i9. II. 85. later on public opinion demanded and still later the state required that 22 the blood-feud should not go on if compensation were offered. "Germania. 46 sq. igo. d'Arbois de Jubainville. p. the injured 23 In relative being allowed to redress himself as he wished. Scotland blood-feuds have lasted into recent times. 1865-i867). 29. XVII. 35 (Rodwell's Translation." Is Similarly in the Koran we read: "0 ye who believe. 191-211). Keyser. and the wrongdoer to piy. I. 173. though certain legends indubitably point to its existence and represent it as objectionable. p. Vol. the following data might be given. The Hstory of the English Law before the Time of Edward I (8W). " IT." 19 As for the Aryan peoples of Europe. The Saxons in England. History of Rome(1894). 1. 2 4 In England up to the middle of the tenth century a manslayer had the choice of "XXXV. VII. x. Notes on the Bedouins and Wahabys. I.R. Retalia- tion is prescribed for you for the slain. in the Revue Celtique. "See J. "See Mommsen. Pollock and Maitland. ii. Among the early Germans Taci- tue says compensation for murder was made by paying over a certain number of sheep or cattle. Among the Gauls and early Irish. and commiting to the State the duty of compelling the injured person to receive.. II. . ch. Among the Romans blood-revenge seems to have been suppressed early. III. p. who says that the State in course of time became the arbitrator between the parties "by establishing a tariff by which injuries should be rated. 5. Ancient Laws and Ilsi- tutes of Ireland. II. 1911. the Roman Church recognized them by leaving the right hands of male children unchristened. 21 In the earliest days the kindred of the victim seem to have had the right of choosing between accepting compensation and exacting revenge. the judgments of the Druids seem to have been awards based on arbitration.

homicide among the post-Homeric Greeks. C. in Corsica. the question of its genuineness. Saxony. as. G. 15-z6.. XVI. Plato taught that it was a fundamental factor in the prosperity of any state to inculcate this notion. ' See Gunther. pp. Histoire des ripubliques italiennes du inoyen age (1826). g... as. Reise Nach Istrien. Idee der Wiedervergeltung in der Geschichle und Phil- osophic des Strafrechts (i889-i8gs). 48. op.pp. Orat. See J. from the fourth edition by F. 322 sq. unequal and "See Pollock & Maitland. see Cherry. p.2 8 Albania 2 and Mon- tenegro. pp. g. e. Lectures on the Growth of Criminal Law in Ancient Comnunities (i8go). Wanderings in Corsica (1855). Popovic. p. Kohl. 479 sq.2o2 sq.324 UNIVERSITY OF PENNSYLVANIA LAW REVIEW paying wergeld or having a feud with the victim's relatives. Their early legislators were believed to have been specially inspired by divine power. See Westermarck. See S. Secs. Blass: orations 2o-6i in the third edition. a law against private revenge was passed. and Switzerland this custom prevailed down to the sixteenth century. 85. "See J. Gopcevic.. Throughout this paper I have used the number- ing of Demosthenes' orations in Dindorf's edition. Lycurgus. i. We see a remarkable example of it in the orator Demos- thenes. cit. the Cretan. p. The Greeks throughout their later history looked upon their laws-especially those framed for the protection of life--as divine in origin. 26 In Italy it lasted into the six- teenth and seventeenth centuries. In a passage in the first oration against Aris- togeiton.orations I-i9. Dalmatien und Montenegro (i851). Oberalbanien und seine Liga. 2 the orator opposes Laws (nomoi) and nature (physis). by Apollo and Minos. ct. "See Gregorovius. and so his words represent the typical if not the critical view of the Athenian people. e. 4oes not affect its subject matter. T. L Simonde de Sismondi. Oration 25 has been suspected of not being genuine since the time of Dionysius of Halicarnassus.3 1 and return to the history and development of the laws governing. op. 25.. by Zeus. who expresses it to a jury of average Athenians. the Spartan. Recht und Gericht in Montenegro (1877).2 3 In Friesland. 69. 176 sq. After the Conquest. I. in several European countries.. 27 and it still exists. 4o6 sq. pp.3 0 We shall omit examples of its occurrence among half- civilized and savage communities.G. But such a conception of the divine origin of Greek law was not confined to legend nor phil- osophy. While the latter is a thing "irregular. . however. 456. r.

(Jebb's Translation. =On the religious character of Greek law. but especially "because every law is an invention and gift of the gods. the state. etc." 86 Sophocles makes Antigone." Men should obey law for many reasons. Later on critical philosophy overthrew the notion." 37 The Greek idea of homicide. and no man knows when they were first put forth.. the laws in Hades. 3. nCrto. but is even more explicitly stated in Xenophon's Mein- orabilia. Thus the leges regiae of Rome had to do as much with religions as civil enactments. but from all time. Sec. common and the same for all. a constitution and a ritual pertaining to sacri- fices. etc.. 35 In the Platonic theory the laws of earth had their archetypes in the other world.e Cita Antique. i. which developed after Homer's * The Greek View of Life. e. 451-452 and 456-457. but its overthrow came with the decline of Greece." and that "their life is not of today or -yesterday. 54 C." 3' Law was regarded as merely a successful attempt to embody justice in practice. ch. THE HOMICIDE COURTS OF ANCIENT ATHENS peculiar to the individual possessor. 12 :q. Lowes Dickinson has observed. as G. It finds expression not only in the passage of Demosthenes men- tioned. According to this Greek idea of the divine origin of law. say that "the laws were set among men by Justice." He goes on tacitly to identify law and justice. while asserting that the rights of conscience are above those of human law. He points out that the early laws of both Greece and Rome were mere religious codes. it was felt that crimes were not so much offences against men. Of course no such identification was ever complete in any Greek State. .3 3 this concept was at the root of all Greek society. 11. but was only approximate. liturgical directions. 4. as against the gods who protected man. see Fustel de Coulanges. collections of rites. prayers. in her clash with Creon. "Antgone." laws are "regular. who dwells with the gods below.) . . XI. III.where Socrates maintains without reserve that "what is in conformity with the laws is just. Still. "IV. Ch. a conviction on which all Greek institutions were based and on which they flourished. Thus the personified Laws sit at the bedside of the imprisoned Socrates and speak to him of their "own brothers. Solon's laws at Athens were at once a code. in the leges XII tabularum there were minute directions about the religious rites of sepulture.

in the Eumnenides. epi tai Delphiniai ("at the Delphi- nium")..V. 298 sq. The causation of the pollution was. but that also a pollution had been brought upon the community. 41 The tainting of a temple or altar would cut off others from such communion. i. i6g and 231. cit. it could not be righted until the defilement had been removed from the state by the proper punishment of the murderer. . in one passage. 5. and is used by Aeschylus. op.57. there was no idea that his presence brought a pollution on the land: thus Orestes. the first properly means "stain or defilement" (cf. g7 and 1052: by Euripides.. see Grimm. 4. a difference proba'bly without significance. The second term means "curse" or "pollu- tion. "Miasmna or agos. extended to animals and lifeless things as well as to humans. Deutsche Rechtsaltertiilmer (ed. 71 and 74. in the Odyssey. accord- ing to which the murderer was a polluted person in the sight of God and man and could spread the pollution 40 among his fellow men. Constitution. not only was it a crime against the. i. 'In the Antiqone. T. Lat piaculuin). zi.3 9 the judges might not be contaminated by sitting under the same roof with one accused of crime. The prosecutor at the funeral of the slain man.gods and men. This conception of homicide. e. in order that. o44. By his act the murderer had become impure and this disqualified him from communing with the Gods. . I&Mg. 5n. Similarly the ancient Ger- mans held their courts in the open air.. It made no difference what kind of agency had caused the pollution. in the Politics. Againein- non. Thus the pollution was looked upon as physical as well as moral. 793 -sq. the main thing was to find the agency and punish it. though he uses the preposition epi of the other courts. Demosth. Aristotle. Thus all through antiquity murder trials were held in the open air. who. Pausanias. and inasmuch as the moral equilibrium had thus been disturbed. 23. was never lost sight of.5. r: by Thucydides. etc.. says to d'eduPrytaneidi ("the court in the Prytaneum").." and is so used by Sophocles in the Antigone. 38 was based on the idea that where a murder had been committed. and 76. 326 UNIVERSITY OF PENNSYLVANIA LAW REVIEW time. by brifiging uncleanness to the very places to which men resorted when in quest of cleansing. Heusler und Hfibner. 16.28. 3. as Antiphon says. Creon rightly says "no man can pollute the gods. Thus homicide trials were held epi tai Palladiai ("at the Palladium"). cf. in the Hippias. 3. as we see from Aristotle. had caused it. if the murderer remained instead of fleeing. in the Oedipus Tyrannus. as we shall see later.. r. 682. PP. the pollution only extended to earthly agents. 35." i. etc. by his act. 256: by Aristotle. 126: in this passage Thucydides calls the polluted hoi enageis. Septem. there- ' In the poems of Homer. by Sophocles. needed no purification for his premedi- tated slaying of Aegisthus.

they also become involved in the pollution.. in which the murderer was warned to keep away from all public places. 23. under these circumstances. where the state rather than an individual was primarily concerned. in 421-423. 871 A. Plato. where he must remain until he was tried again. Thus at the outbreak of the Peloponnesian war in 431 B. The descendants of the guards who slew the conspirators were still in the city in 43! B. the public prosecutor could carry him 46 off to prison. 23. uttered a solenin denunciation. 1o. 7z. was himself 47 treated as a murderer. V. At the same time the Athenians sent ambassadors to Sparta ordering the Sjartans to drive out the "pollution of Taenarus." This referred to the slaying of the fellow conspirators of Cylon. IX. C. 1. Laws. 230-231. V. who had taken refuge in Poseidon's Temple at Tacnarum... 2% x58: cf. 28. see Thuyd. C." This referred to the slaying of certain helots some time before. says that if the kindred fail to prosecute. the chorus of Furies threatens to pursue Orestes to death: again. 44 The pollution might keep up for centuries. 128. but it returned later.. The vitality of the idea See Demosth. assem- blies.. "In the Eumenides of Aeschylus. C. 23. at the instiga- tion of Solon. changed but little in course of time. Thucydides. during his rebellion nearly two hundred years before. Plutarch. Oed. after they had accepted the promise of safety at the altar of the Euuihenides. 37.. they say they will hound him to "where to rejoice not is the appointed doom:' "The conspiracy of Cylon (612? B. Constit. 4: cf. the Spartans sent ambassadors to Athens demanding that the Athen- ians "drive out the pollution of the goddess. THE If OMICIDE COURTS OF ANCIENT ATHENS fore. The clan was tried and banished in 596 or 595 B. 37. VI.). . sanctuaries. they. C. He was safe from molestation so long as he stayed away and whoever. slew him. 1 Demosth. agoras. Because of the religious origin and character of homicide laws. is described by Herodotus. I. 80: law. Tyr. 12 and i9. 4 5 If the murderer ran away and returned later and was seen walking in the proscribed places. the agora by the King-archon. Antiphon. Sophocles. etc. Solon. 236 sq. 126. 23. where the denunciation of Laius' murderers put into tht mouth of Oedipus by the poet was borrowed from Attic law. "Aristotle. 57. 4 2 The same denunciation was repeated in. like everything else connected with Greek religion. but slew them instead. and become hateful to the gods. The archon Megacles (of the clan of the Alcmaeonidae) promised to spare the conspirators if they would leave the altar where they had sought refuge.. '"Demosth. 2 and 4. 43 The pollution continued until the manslayer had expiated his crime by the proper ceremonies or by death.

4. but private only distracts them. because they were too severe and the penalties too great :." While the rest of the legislation of Draco. emphasizes the ponderance of criminal over civil law in all ancient codes. x: Plutarch. cf. in the time of Aristotle 52 Laws. the Germanic codes civil law has trifling proportions in comparison with criminal. Constit.. says of Solon's laws that each one of the thesinothetae swore at the stone in the agora. Constit. Suidas. C. especially 872-873: in 875 A. "produced by a society of greater legal genius and at first of gentler manners. but under the democracy instituted after the fall of the Four Hun- dred in 411 B. Stronuta.. Andocides. 2. IX. he would dedicate at Delphi a golden statue as large as himself. the laws governing homicide. Ancient Law (1883). The sanguinary penalties of Draco's laws indicate the same character. he says that man must have laws and conform to them or his life would be as evil as that of savage beasts: he says this is because no man knows by nature what is best for the social state of man. 41." 'So Aristotle. Solon. Tatian. C. if he did know. 7. Adv." " Demosth. however. formed the most im- portant part of the whole body of law. not with private but with public good: for public good binds together states. Though changes occurred in other laws. Clement of Alexandria. called Draco's enactments thesmoi in one part of the Constitution. trate or citizen. 0&Sir Henry Maine. 81 (cf. 49 The criminal laws at Athens." He sums the matter up by affirming "that the more archaic the code. in the fourth century B. "Aristotle. Olympiad 39 (6z4-1 B. gives Draco's activity as the year of the Archonship of Aristaechmus. Graecos. Lexicon. or. 41. 17. in speaking of Draco's laws. says Draco's laws were called thestnoi. while Solon's were called noinoi. also. p.). also Aelian. and still s. that of homicide laws. Aristotle. the civil law has something like its modem precedence. as elsewhere in the ancient world. r. 1. 83). C. not only was left unchanged by Solon.. Thus in pre. Varia Historia. Solon. 12. Plutarch. Only in the leges XII tabularuntat Rome. says that whoever. should cause them to be "defeated" or "altered. the first Athenian to draw up a code of laws. would he be able to do what was best. etc. 367.5 1 its distinctive part. was changed or abrogated a few years later by Solon in the interests of less severity.Drakon. and nornoi . 366. 10. 23. 1." shallmagis- with his children be disfranchised and his property shall be confiscated. states that Solon repealed all Draco's laws. De Myst.v. in another. 62.4 . VIII. 7. 328 UNIVERSITY OF PENNSYLVANIA LAW REVIEW that they should remain constant is attested by the fact that Plato.. the fuller and minuter is its penal legislation. the Athenians were singularly conservative in preserving them intact and inviolate. . except those concerning homicide. for "the true art of politics is concerned.. in one domain. still insisted that it was merely the state's business to regulate the methods by which vengeance should be meted out and to prescribe on what conditions the offender should receive forgiveness and become purified. that if he broke any of them..

v. " Cratinus. 5" were probably originally engraved either on triangular tablets fitted together at the angles so as to form three sided pyramids known as kyrbcis. This change was accom- panied by great legislative activity. De Myst. says these tablets were of wood. his Griechische Gcschichte. IV. says Solon's kyrbeis stood here: cf. 25. but actually by all who were able to equip themselves for service in the heavy armed infantry. axones. says they were of brass and Apollodorus. 1. which was in theory followed by the Five Thousand. determining its relation . S. Ayes. a?Aristotle. Harpocra- tion. 153 sq. Hellenic History. Hellenic History. Andocides. TE HOMICIDE COURTS OF ANCIENT ATHENS and Demosthenes 5 3-three hundred years after Draco's codi- fication-was still venerated. the Athenians were encouraged again to establish the democracy. while the scholiast on Aristoplianes. 1354. Botsford. though he also gives the variant opinion that the latter were used for ceremonial and religious laws. cf. " Plutarch. c. C. v.59 A board of recorders n 47. x7 and i8: Aristophanes. A.). also. (axles). C. XIII. see Busolt. 2nd ed. " They were first mentioned by Cratinus. 1. II.5 In the year 41o B. ch. and the former for civil.. 97: cf. 290.. -thus escaping the encroachments of the popular (heliastic) courts.. On the King's porch or stoa. apud Plutarch. 2. kyrbeis.. also Etymologicurn Mag- ni. is almost entirely a study of the old code of Draco. D. 7. 1. like the later ones of Solon. Plutarch. This plebiscite was one of the measures which followed the overthrow of the oligarchy of the Four Hundred in 411 B. A study of Athenian homicide procedure. where everyone could read and copy them for his own purpose. s. apud Suidas. cf. s.und Rechtsalter- traner. ap. Schol. kyrbeis. n. ori Appius Rhodius. "A portion of this activity was concerned with the passage of a decree limiting the power of the Council of Five Hundred. "See Thucydides. C. c. in the years 4o9-4o8 B.. Plutarch adds that relics of them were to be seen in his day (second century. in the Prytaneum. Solon..v. in consequence of the sea victory of Alcibiades off Cyzicus.. Eratosthenes..57a by a plebiscite vote these laws were engraved upon a stele which was placed in front of the King's Stoa. 30. c. 5 6 In all probability these tablets stood in the Royal Stoa57 Later. Griechische Staats. see Botsford. Constit. 'T' This is the date of the archonship of Diodes. 298 D: Lysias.. Plato. 352. 5 or on revolving wooden pillars faced with rec- tangular tablets called axones. Fragm.. The laws of Draco. then. 71: cf. cf. Politicus. On both. VIII.ed. 1. ch. of stone. and he identifies axones and kyrbeis. 82 and 83. p.. says both Solon's and Draco's laws were engraved on kyrbeis. 3. 280. XIX.

Lysias and Antiphon. who re- ceived the laws from the king-archon and-set them up at the Royal Stoa. perhaps. in Hermes.). but in the following October. Busolt. of Isaeus. C. 21 sq. Isocrates. pp. pp. The inscription was first restored by K6hler. Beitr. lions juridicques grecques." n. 2nd ed. 146 sq. pp. see E. De Myst. In modem texts of the orators. Der Areopag und die Epheten (1874). translation and commentary-by Dareste.. 225-243. Suppl. 25. pp. init. Constit. XXIII (1897). 97. Hicks and Hill. he calls them nomothetai. M¢feyer. 3Especially Orations 23 (Against Aristocrates) and 43 (Concerning Macartatus). II. on Aeschines. 18). in the Recueil des inscrip.. 61 (Kirchhoff.qe =ur Entwickelungsgeschichte des griechischen Gerichtsverfahrens. 57. "It. 573-579. I.. 330 UNIVERSITY OF PENNSYLVANIA LAW REVIEW (anagrapheis) was appointed to remove inconsistencies from the old code of Draco and to rengrave the separate statutes. -on the other hand only logoi klerikoi. Botsford. Jahrbuch fur Philologie. is to be found in Corpus Inscriptionum Atticarum (= C. and again in 446 B. by Philippi.0 4 and hints from various other sources. Haussoulier et Reinach..).. II (868). Schol. " So Lysias. VIII. L A. 1. Sylloge. This board continued in office for six years and abused its trust. but was revived after the Thirty Tyrants had been expelled and the old democracy had been again restored under Thrasybulus in 403 B.0 0 This revision was interrupted by the calamities which befell Athens at the end of the Peloponnesian War. to the heliastic courts: see Corpus Inscriplionum Graecarun. 2889q.).. Especially ch. cf.63 It should be added that the details of Attic law depended very largely until recent years on cx parte statements in certain of the orators. Thucydicles. 78: Dittenberger.. z877.. 45. The anagrapheis were scribes or secretaries. Roberts and Gardner. p. 1915). II. Gesch. 83. 1-24. Greek Epgraphy. Geschichte des Altertums. and Hellenic Civilization. On the code of Draco and the revision of 409-408 B. III. in Jahrbuch ffir Philologie. best of all-text. I. uses this term in March. pp. " Of Antiphon we have only logoi phonikoi left. 1. 57.. z873. 577 sq. I. C. with absolute powers to compile the lavs to be laid before the people. CV. (cf. Griech. to Vol. . pp. just after the Four Hundred had been overthrown. Suppl.61 For- tunately we stil. C.l possess a portion of this revision on an inscribed stele. pp. 333 sq.. 1538. II." The text is in a fragmentary condition and can be restored only in part (the last ten lines being quite illegible) with the help of Demosthenes. The Development of the Athenian Constitution. 411 B.0 3 the Conslitution of-Athens by Aristotle. 'Andocides. 3o. 3: Gilbert. Commissioners (syggrapheis) had already been appointed in 45o B.39. Bd. in some cases could be checked by inscriptional evidence. Greek Historical Inscriptions. in connection with Aristotle. $2. C. VIII. 67 (cf. II (2nd ed.6" which. specially Demosthenes. 443-536. 151 D).(Botsford and Sihler. the places where the speaker stopped to to the assembly and. C.

which treats largely of the jurisdiction of public officials and court machinery. Var. c. but their names are known to us from Aristotle. Aelian. Die Staatsgeschichte Athens. Since the discovery of Aristotle's work on the Conslittiion of Athens. abolished that article and substituted one of his own. The various Athenian courts of honicide are not mentioned in the Draconian inscription. the most important of these courts. Phreatto and Pryt'aiieum. Others. Rhehtisches Museum. Manual of Greek Antiquies (1895). 5-I. VIII. g. The fragii'ents of lav inserted in the manuscripts and copied over in our texts are either the constructions of later hinds taken' from the context of the speech itself and hence a~e generally ih'accurate. to great honor again. as we . Demosth. XXIV. 'Const. Demostheies and other sources. Delphihiiim. 57. "Just why it is omitted from Draco's tablet cann6f'be definitely settled. Ii. in his revision of Draco's murder code. 3. Onoinasticon. Hist.69 Our next task will be ' See Gardner and Jevons. I. cenity A. 132. 289. however.. Hagemann. 8. on taking over Greece. This would account for the fact that Draco nowhere in his legisla- tion mentions the Areopagites but only mentions Ephetai. p. The most satisfactory explanation is to assume that Solon. who. Jahrbuchf Ur Philologie. p.top6graphlical value.. does not contain the article on murder in the first degree-the trials of which took place at the Areopagtis court-and we are dependent for duri information about it on other sources.. At the completion of the trial the speech would b kept by the person for whom it had been written for usi in possible future litigation. strangely enough. XCVII. I.. Pausanias. but is merely an antiquarian excursus: see Schubart. 23. inasmuch as the Romans looked on Athens as the fountain head of their law (cf. we can dispense almost entirely with the testimony of lexicog- raphers and scholiasts. n. VIII. 65-79. 527-528. whose information we now know goes back to that work. believe that Pausanias actually visited them and that they would be of interest to Roman travelers for whom he wrote. D. Palladium. 825 sq. 117-120: Pausanias gives the fullest account of these courts. raised the Areopagus. or if some way ihy were copied from the actual' laws. 28. 28. tHE HOMICIDE COURTS OF ANCIENT ATiENS let legal extracts be read in court are mn'rked nonzoi (laws). and Die Stadt A then. Curtius. since they were.6 s From these writers we learn' that down to the secoiid. consequenfly fhe speech would becoffie separated from the legal extracts. Pollux.. pp. 38). the IAtter being omifted' when the former Was kept for its literary merit only. th'ere were five different homhicide courts at Athens-the Are6pagus.. 46. De Prytaneo. 36. inasmuch as they correspond 67 with known inscriptions exactly. however. and because they. Wachsmuth. The Dra- conian inscription also. unimportant for a traveler to visit and were widely separated-ffrom the north slope of the Acropolis to the Piraeus-most' scholars believe that his account has no .

It is very simple and direct. stuck it upright on the grave and watched it for three days.. and not the original Draconian tablet. "Demosth.7 3 This interdict was repeated by the King-archon in the market place. Euripides."Anecdota 9raecai 31o.. Plutarch's words show that he probably only saw the restoration of 409-408 B. and IX. 11: Aristophanes. cf. 42. The stele is superscribed as protos achson (= prOtos axln) : whether this means the "first axle" of Solon's or Draco's code cannot be determined.. C.. IX. the nearest of kin was bound from the earliest days by religious sanction to be the avenger of blood guilt. Laws. Demosth. 855 D. 6: Demosth. We know this procedure from statements of various writers. 6'. g. "Antiphon. . A. A. "Aristotle.. sanctuaries. age and management. Vespae. "Antiphon.332 UNIVERSITY OF PENNSYLVANIA LAW REVIEW to discuss as briefly as possible. also. pp. Laws.7 1 that the murderer appear before the King-archon 72 and answer the charge.. Solon. assemblies. which. The first thing to do was to lay the indictment (graphi phonou). Plutarch. cf. Conslt. etc. seems to have been the same in all five courts. as we have seen. v. 873 A: cf. Troades. I. 1. was made by the kinsman before witnesses. ibid. shows -that some- thing preceded-either the clause about wilful murder inserted by Solon or the original one of Draco. 6. 47. 1. 69: Plato. 57. had the management of the Palladium. 47. especially the orators. which begins the first law on the Draconian stele. s. IX. T5: Lysias. 72: law. xo4r: cf. with trifling differences.. ° Demosth.- see Hellenic Civilization. epenegkein doru-that to symbolize the pursuit of the murderer. 57. 3. 43. 74 Three successive investigations in three successive months were made by the King-archon 75 and the case was brought to trial shall see. warning the murderer to keep away from public places. 2 and 4. 57: C. 871 C. i48: Harpocration.. Plato. We learn from several writers-e.. 43. I. The judicial summons (prosclesis). Constit. their compe- tence. after making the proclamation at the tomb. line 17 sq.. 846 B. The prosecutor uttered at the funeral of the slain man the solemn denunciation already mentioned (technically called prorrhesis). It may be added that the word KMu (and). Delphinium and Phreatto. 88. 6-9. T° For. 874 A. Before doing so it will be well to review the procedure followed in murder trials at Athens. C. VI. Plato. 'Aristotle. the accuser carried a spear in front of the funeral procession and. V. ixg. VI. This was done by the relative of the slain man within the usual degree of cousins' children inclusive. Those who met a violent death at Athens were interred with peculiar formalities. Bekker. 6r. 288-289.. Laws. line 17 (the Draconian stele).these five courts. VIII.

was the jrocedure in all murder trials in Athens. the victim's kinsmen could slay him or hale him again into court. nor the judges having the power to restrain him. assigned it to the proper court and in all cases presided at the trial. Bekker. a right which appears to have been a relic of the old blood vengeance. 6 and 57. he was mulcted in a thousand drachmae. 69: Antiphon. 57. 6 sq. his person was given over to the proper offi- cials. 59.8 3 The accuser had the right to see the guilty man suffer the death penalty. Plato.117: cf. VIII. 69. 78 After the accused had delivered his first speech. murder is still. neither the plaintiff. . as it was in Homeric days. 8 4 However. but stood his trial and was condemned. 23. though they were not allowed to maltreat him.. forgave his slayer. 117. "Pollux. the rocky district of Mt.. U Demosth. southwest of Sparta. 7 The plaintiff and the defendant were each allowed to speak twice. 23. 23. he had the right (unless a parricide 79) to go into voluntary exile and thus not run the risk of being condemned. 23. WDemosth. 31. 117: Antiphon. 8o.. V. he had to stand the sentence of the court. "Pollux. 28: cf.. Demosth. "Pollux. THE fOMICIDE COORTS OF ANCIENT ATHENS on the last three days of the fourth. gr. " It might be added that in Maina." This seems to be a remnant of the Homeric custom of pardon- ing a murderer when 7vcrgeld had been paid. 310. even after conviction. the defendant could still be forgiven -and released by the kinsman of his victim. Taygetus. VIII. "Demosth. Laws. the latter's kinsmen could not prosecute. got less than one-fifth of the votes of the judges. Constit. Again if the murdered man. just before dying.. how- ever. 23. in brief. VIII. the plaintiff. after examining the case.8 2 If the accused was con- demned to death. Demosth. 4: cf. 2. 69.8 0 If he returned. VIII. 56. ibid. Feuds have always been common there.. says that the last three months of the Attic year were excluded for trying homicide cases because the archon was not allowed to hand them over to his successor.' If he did not avail himself of the permission to flee. 99- "Demosth. Anecd. "Aristotle..8 6 Such. a private affair between man and man. If. 13. 871 D.. IX.70 The King-archon.

". the same penalty in both cases. though precise. T Attic law distinguished between three kinds of homicide. roughly corresponding to three courts: premeditated murder (phonos hekousios or ek pronoias). suddenly and without intent to slay. 1. the legal contest largely turned on general probabilities (eilkota) and so quite differently than in modern courts. or without premeditation. of revenge. says this is the worst sin. Graeco-Italische Rechtsgeschichte (1884). 866 D. The ability of the orator. 45. tried at the Delphinium. comparable with sacrilege (temple plunder) and treason. sq. kill on momentary impulse and become repentant immediately thereafter. or from feelings of. Distinctions between various degrees of guilt in different sets of circumstances were drawn and con- sequently. helped then more than they do now. 259 sq. In practice no middle ground between the first two was recognized. "Antiphon. easily confutes this.334 UNIVERSITY OF PENNSYLVANIA LAW REVIEW From Draco's day. . Here Plato says a deed is done from passion when men. "depended rather on minute tradition than on clear principle. which may be justly said to be a mean between the voluntary and the involuntary. the ingenuity with which he could invert the facts. if not earlier. I. justifiable murder (ph onos dikaios). were far from scientific.8 9 Cases of premeditated murder were considered by the Athen- ians as by us to be the worst offences known to the law 00 and "Leist. though "not willing it. Das Attisehe Recht und Rechtsverfahren [based on M'eier-Sch6mann's Der Attische Prozess (88i-i886)l. according to which slaying in anger is recognized. io. where Achilles tells the disguised Athena that he is outlawed for having slain Orsilochus." A captious or even frivolous sfyle of argument was invited by a code which employed vague concep- tions in the elaborate classification of accidental details. V. both of them arising from passion. tried at the Palladium." The acceptance of wergeld on outlawry was. "Laws. An example of unpremeditated murder is found in the Iliad. Lipsius.. A good example of premeditated murder is found in the Odyssey.. p. Though other kinds of evidence were admitted. p. tried at the Areopagus: unpremeditated murder (phonos akou- sios). revenge when a man is slain and no remorse is felt: "And therefore we must assume that there are two kinds of homicide. i9.88 In general it must also be said that Athenian laws governing homicide. IX. XIII. Such a distinction is found only in the Platonic theory. with intention urged on by feelings. 85 sq. XXIII. as we have seen. where the wraith of Patrochus recalls to Achilles how he once killed a playmate at-dice in childish wrath. as also different penalties according to whether the deed is committed in passion. as Jebb has said. wrongly assumes that there was a distinction between premeditated and unpremeditated murder even in Homeric times. "Attic Orators (1893).

however. the case was one of hybris (outrage or aggra- vated personal assault): Demosth. 2 It was held like the other courts in the open air 93 on the top of the bare rocky hill just west of the Acropolis. It was held on the plateau at the eastern end. 6. Hernot.see Lysias.: and Gilbert.08 In each case intention (pronoia) seems to have been essential. 40-43. I. referring to the cave sanctuary of the Erinyes at the foot of the hill. II. and this was the place where men made offerings and swore oaths: see Pausanias. 2T. 2: cf. III. 417. and law 23. cf. 54. iY: Pollux. derives it from ara (curse). Realencyclopddie. 2oo (Article Athen).). Mfiller). 46: cf. 25. Most modern scholars. see Curtius. The ancients mostly connected the name with the god Ares. 64. . who was said to have been the first to be tried on the Areopagus for the murder of Halirothius. 31 (an example where a woman was freed when no intention at poisoning could be proved). Gilbert. on Clemens Alexandrinus. Protrepticon. Demosth. the Erinyes are called araL (curses) by Aeschylus. "On Wounding with Intent. n. Atlas. 227. poison- ing and arson.97 At the trial the plaintiff and defendant had "Aristotle. Anecd. 2. p. and De do'no. Hellanicus. Bekker. 2: Wachsmuth. The Areopagus was called e bouli j ex Areiou pagou or Arei~i pagqi or simply I baule. 3: Pollux. but to kill. Herodotus. Lysias' Oration 4. 28. 1894). Constit. 3: Dcnxosth. If intention were not proven. Philippi. sacrificed here to the god while they were beleaguering the Acropolis: Aeschylus. 21. Hand- buch der griechischcn Stoatsaltetfiincr.1t' Athenian law recognized three kinds of voluntary homicide. 426. servants of Ares. v. Schol. Constil. Lucian. 4. 34. pyrkaia. "Lucian. 22. 2.. The form Areiopagos is found only in late inscriptions. VI. s. pp. 5: Apollodorus. Der Areopag und die Epheten. 69 (ed. but Pauly-Wissowa. On the subject of trauma ek pronoias. I. 2o. 157. 425. THE HOMICIDE COURTS OF ANCIENT ATHENS were tried exclusively at the court of the Areopagus. M8 "Aristotle. "Antiphon V. 57. see Gleue. VIII. 24. De homnicidaruin in Areopago Atheniensi iudicio (G~ttingen. I. or aikia (assau t or affront).. n. Antiphon. 23. 65.0 ' This was the oldest and most sacred of the Athenian courts. 28. etc. n. This derivation derives support from the fact that solemn oaths were sworn to the Furies and other deities upon this hill and that a man who there forswore himself was supposed to have incurred "all curses of the city": Deinarchus. 253. 57. 3. BI.. Denkindilcr des klassischetz Altcrthums. and Piscat. 1. derive the name from the altar of Ares at the northeast foot of the hill: Wachsmuth. frag. cf. 14. Handbuch. gr. n. IX. 24. uiM. Constit.3. In law "intention" was not only to wound.. taken from Euripides. Die Stadt Athen. x: Milch- h6fer in Baumeister.. and easier to sustain: Demosth. Electra. 23. Eumneni- des. Bis accusatiis. p. "Aristotle. 3. where death was brought about by wounding. Others explained the name from the myth that the Amazons." is an example of such a case. Demosth. Die Stadt Athen. derives the name from Athena areia. etc. 1. 23J 66: Euripides. which is hewn in the rock behind an altar-like block approached by fourteen steps from the south. 428. Eumenides 685 sq. cf. I. 52. 1258 sq. 27. II. 1.9 4 The court was held in the day time and not at night as has been generally assumned. which was bf a lighter degree. p. p. 12. 23 sq. VIII.. 4. who had a sanctuary on the hill. x188. 16.II (2nd ed. 8 sq. 3: Ethics. 117: Demosth. 42. 57. VIII. I.. 2 and 4.Paus. phariaka.

99: cf. 6o3. "it is no ordinary oath . 16). however. VIII. Epist at Atticum. in praising the conduct of the Roman Senate. Lycurgus. Cases of aikia were not confined to the person injured.' 0 2 In cases of intentional wounding.98 where they took a most solemn oath. and aikia (Sees. Constt.""1 The penalty seems to have been regarded as more ethical than juridical in prin- ciple. says: "Senatus arejos pagos: nihil constantius. impre- cating destruction on himself and family. to meet the requirement of religious law. cf. "' Demosth. nihil fortius. Meier-Sch~mann. Orat. 735: Antiphon. Sim- ilar oaths. were sworn at other times: thus Piso. Der Attische Process. 43: cf. Against Eratosthenes. though not under such impressive circumstances. A good example of the latter is afforded by Isocrates.336 UNIVERSITY OF PENNSYLVANIA LAW REVIEW to stand upon two rough white stones.100 Only in the case of a tie vote was an acquittal possible. 38. 12. but prob- ably the accused. Oral. Examples of intentional murder are plentiful. in Lysias. where death 34-35. 2. 1. but was probably accused on the occasion of his coming forward to render an account of his office as one of the thirty tyrants: see Blass." Cf. 252 ' Cf. 2. V. that confiscation only took place if the defend- ant escaped the death penalty by flight after his first defence speech. for throughout antiquity the sentence of the Areopagites was considered to be the expression of the most solemn truth and justice. 14. Das Attische Recht und Rechtiser- fahren. i. 24. n. Orat. Orat. Meier's idea (De bonis dainnatirum. 947 sq. P. nihil severius. the latter says that only at the Areopagus "has it occurred that neither a con- victed criminal nor a defeated prosecutor ever established a charge against the propriety of the verdict. 21. Antiphon. Since the discovery of Aristotle's Consti- tution we know that he did not use. 5. also Thonissen. each imprecating himself. 171: Demosth. ii. Eumenides. but one that no person swears in any other matter. ram and bull slain by the proper person at the proper time . 1. one of which was called "Ruthlessness" (lithos anaideias) and the other "Insolence" (lithos hybreos). 28. pp.. Aeschylus. 12: Aristeid. any citizen cognizant of the assault. he must stand on the entrails of a boar. Die Attische Bcredsainkeit von Georgias bis zu Lysias (x868). 9. was the sever- est-death and confiscation of property or exile. was not put to death. Cicero. 67. "Pausanias. . Der Areopag und die Epheten. could lay the indictment before the thesinothetae. 15) . who. i. in order to give full satisfaction to the ancient blood-revenge. not prose- cuted under an ordinary indictment for murder. 17) : both orators thus seek to con- bins the forces of two distinct forms of accusation. p. 47. II (1o8). but also calls it hybris (Secs. 308). 7. is dealing with aikia. Eratosthenes was probably. 3. Antiphon's First Tetralogy and Third Totralogy. 47. (which passage Demosthenes may have had in mind in the above statement). 23. Le droit pinal. "This oath is given by Demosth. 20 (Against Lochites). in this speech Demosthenes. g. 540-541: the result of this trial is unknown. Oedipus Colonests. p. V. 12. Orat. 54 (Against Conon). swears one to Lysias. 5. 11. e.ed. 1o. and Lysias' great oration. in ch. Antiphon. p." . p. . here Isocrates calls the offence complained of both hybris (Secs.. also Demosth. 3. 23. . was shown to be tfalse by Philippi. 13. family and kinY9 The penalty.. . V. for political reasons. the words to that effect which appear in Pollux. like Isocrates. Lipsius. io: Aristotle." On the wisdom of the court see also Sophocles. Lysias. $1: Aeschines. I 9: el. 18. 2. 67-68.

now the youth demands that the real criminal be punished. death was the penalty 1 05 Only cases of wilful murder against Athenian citizens were tried before the Areopagus. Pseudo-Lysias. Orat. 3. 26 sq. 627-633:. in Daremberg et Saglio. Erldu- ternder Text. In Ciesiph.. Bekker. I. I. . I. v. 253. see Philippi. E. De exiio. here an elderly Athenian was accused by Simon of having wounded him in-a quarrel over a Plateaan. like the Academy. gr.'0 7 However. Orat. 87. "'To epi tai Palladi~i dikasttrion.vS In cases of poisoning 104 there was no suit unless death followed. I (Against a Stepmother on a Charge of Poisoning). If the case were proven. where the accuser. On the Choreutes. is a good example. THE HOMICIDE COURTS OF ANCIENT ATHENS 337 did not follow. ejii PaidiiO. 425-427. That of slaves can be deduced from Demosth. 6). pp. pp. v. 194. 298): see Curtius.: Philippi. Der Areopag und die Epheten. 40. 71. the indictment being traumatos ek pronoias. Karten von Attika. 273 (fragments of lines 5 and 22): III. 6. held near the sanctuary of Pallas Athena. "On the Areopagus see Paus. Antiphon's speech (n. pp. and notes: Lipsius. 58. Ziehen. Plutarch. This court was situated some- where "east of Athens" (Plutarch.. VIII. p. 1:8 sq. Areopagus.. for the pains taken to train choral voices) : the choregus was accused by the boy's brother. Anecd. in the Rheinisches Museum. n. 6. 603 sq.1 °0 The penalty inflicted was~exile.: Gilbert. charges Demosthenes with having brought a false charge of this sort against a certain Demomeles and says this is one of the habitual villainies: ef.. Die Drakontisehe Gesetzgebung. Attic Orators. Theseus. pp. with definition). 61. op. '"On pharinaka (later called pharmakeia. 1. Timon. 47: 4. 113-114 and i2o. II. at that time the slave was put to death. gr. 5: Pollux. cit. art. This sort of indictment was a notorious instrument of false accusation at Athens: cf. her dupe. while being trained as a chorus singer for the Thargelia. became the haunt of philoso- phers. Demosth. 28. 1x. 89. charges his stepmother with having poisoned his father years before by the instrumentality of a female slave. 23. Aeschines. Caillemer. The cause of death was assumed from the cir- cumstances. 117: Bekker.. cit. on Aeschines (II.). all works published before the publication of Aristotles Constitution in z89i are obsolete. Dictionnaire des Antiquitis grecques et romasnes.ysias. I. was poisoned by a draught given to improve his voice (cf. op. 1. Another example is Antiphon. Handbuch. 12I-12% II. 18: cf. believes this case was tried before thd Areopagus (in section 82 it is called "the most conscientious and upright" court in Greece). testimony of Phano- demus (apud Suidam.. Areios pagos (by Wachsmuth and Thal- heim). 32. 395-404. relates to the death of a boy named Diodetes. op. s. "The punishment of metics (resident foreigners) is alone given. 321-344: Pauly-Wissowa. 27). 14. In Andoc. pp.. Lysias. 23 sq. De gloria Athen. the main function of the Pal- ladium was the trial of cases -of involuntary homicide (plwnoi L. as we learn from the concurrent. i.see Aelian. the death penalty was exile and confiscation of property. also Lucian. I. on the borders between Athens and Phalerum. However. in which images of Athena and Zeus were worshipped: C. as there were no autopsies by physicians in antiquity. F. liv (1899). who. 40.. art. pp.). p. 1. Timacus. 19. Anecd. Pollux (VIII. Plut. pp. iS. It later. cit. 3. A. 3 (Defence against Simjon). Jebb. 46. i (2d Ed. (a873). a son of the deceased. Similar cases against resident aliens. s. 38: Demosth. N. strangers and slaves were tried at the Palladium. 32. and the Schol.

or cause him to be slain while he is away. after swearing the oath". on the Iliad. 23. that the man could return anyway after five years. s. 665. The punishment of foreigners (other than metics) was prob- ably exile. 3. C. Suidas. Bekker. S'MC. 2. i0 ele pronoias) which the Athenians recognized as far less criminal than those of intentional slaying and consequently as meriting a lighter punishment-exile without confiscation.. I. Aristotle. 1. Aschines says that the victorious litigant in a case tried at the Palladium had to strengthen his declaration with an. Lexicon. IX. Laws. see Demosth. L A. xis: IV.1 10 This oath is given by Demosthenes as an "imprecation on self and house. I. line i3 sq. v. nor can ransom be accepted under penalty of paying double the amount of damage incurred by the murderer. Constit. 87.. line ii sq. VIII. II. I. etc. religious payment was allowed: Anti- phon. p. 28.10 8 According to Demosthenes. after which he might return if he per- formed certain sacrifices and purificatory ceremonies." Cf. 3: Pausanias. . g. who. These persons shall be chosen by the 5x from those of noble birth.. brother and sons of the victim. 8-9: Harpocration. VI. Anecd. all agreeing. 6r.70. xiS. or he may be arrested and not be maltreated. ' 2 3 . this with Demosth. line 16 reads: "If there is not any of these persons and the homicide was involuntary and 5i ephetai decide that it was involuntary. the murderer must get it from the father.: cf. We learn from the Schol. if all of them] are willing.: "[If there are no] such persons. if they are willing.10 9 Draco's tablet says that if anyone kills the murderer. the relatives as far as the degree of first cousin [may forgive. and 71-72. A. on being convicted of accidental homicide. . epi Polladiji (quoted from Aristotle. The exile can be killed only if he has returned... 43. if one voted against it.. 4. 21. B. 45." 111 and similar formulae in inscriptions: e.. A. the slayer shall be admitted to the country by ten members of the phratry. oath. 9r. 31r.33 b. If you owned the slave in question. On aidesis (forgiveness). Plato. "'47. 877. Demosth. I. he shall be subject to the same penalties as one who has slain an Athenian. the author of the Etvmologicum Magnum. as are also the epitomes of the other lexicographers. Pollux. 27 c: 1.338 UNIVERSITY OF PENNSYLVANIA LAW REVIEW akousioi. 72: cf. C. I. 57. has gone into exile. 57. 43. 6x. where a boy is represented as being killed by running in the way of a javelin hurled by a youth who was practicihg javelin throwing at the gymnasium. the law ordained that persons ban- ished for unpremeditated murder must leave the country-which had been made impure by the crime-by an appointed road within a certain time and remain in exile until he found forgiveness with the victim's kin. none was given and the exile could not return. A good example of involuntary murder is afforded by Antiphon's 2nd Tetralogy.

but according to Deinarchus at the Areopagus-a discrepancy reconciled by the fact that "instigation" cases were transferred from the Areopaus in the fourth century. 1I. Attic Orators. De Myst.: cf. Sec. "' JahrbuchfUr Phitologie. article Athen. op. Jebb. 3. P. 273: Gilbert. pp.: E. in Baumeister's Denk- niiler. and. 46. 421-428: Lipsius. op. 252. 61. though no inten- tion to kill could be shown. I. . for com- plaints were entered not only against actual agents.: Gleue.: cf. if death of the victim resulted. p. 524 sq. 1 4 . Hand- buch. Curtius. Handbuch. III. op. cf. 1037 sq. I. C.. I. ine io: Andoc. where death did not follow. p. the punishment was death and con- fiscation of property just as in voluntary homicide decisions at the Areopagus: if death were intended but not effected. Philippi. n.Suppl. 427. facit per se. 29.. quacunque sit ratione. I (Against a Stepmother) furnishes a case of bouleusis with intent. This explains Harpocration's statement that according to Isaeus and Aristotle such cases were tried at the Palladium. having been previously tried at the Areopagus. on the principle that qui facit per alium. p. n. at the Areopagus: if instiga- tion were proven in an act which caused death.113 The penalty was the same as that for the actual commission of murder: thus. but against those who urged others on to commit murder. De Areo- pago. 39 sq.ipse tamen a necando manus abstinens. s. Grie- chische Stoats. On "instigation. 3. pp. as in the case of involuntary homicide at the Palladium. 138. cit. p. 6r. i. 12 It appears to have made little dif- ference to the court whether death was intended or not. I. I. I. 6o. p. Forchheimer.und Rechtsaltertiiner. Aristoteles und Athen. (2d Ed. pp. while his Orat. cit. Antiphon's Oral. the penalty was exile. Stadtgeschichte Athens. quo quis. 29.. A. Gilbert has shown that these cases were added to the jurisdiction of the Palladium in the latter part of the fourth century B. i29. 6o9 sq. hominemnmorti studeat dare. See Sauppe. Orat. bouleuseds. pp. Wilamowitz. -pp. as in cases of wounding with intent to kill. 207. I.e. Attic. both of these cases were tried at the Areopagus before the transference mentioned took place. 55: Busolt. where the accused could fully admit the crime as intentional and plead that he had a 'C... Gilbert. 1. THE HOMICIDE COURTS OF ANCIENT ATHENS One other kind of trial was held at this court-the crime of instigating murder. "' On the Palladium. See also Pauly- Wissowa.. n. 179 sq. and consequently was morally responsible for the crime. Besides wilful murder Athenian Law also recognized cer- -tain cases of lawful homicide... also Lipsius. see Milchhbfer. 2. XXIII. 235. pp. technically called bouleusis.Ed. cit.).how- ever. Bd. VI (On the Choreutes) is one of bouleusis without intent. Realencyclopiidie. exile and confiscation of property." see the definition in Harpocration. 30. p. p. v.. 94. defined it as id crimen. Der Areopag und die Epheten.

54. I. 358. ]. Laws. t13. Greifswald. Pollux. 19. 55 (adultery. quotes from Demosthenes. in which Eratosthenes was slain by a humble citizen who found him in bed with his wife and the mu rderer pleaded justifiable homicide. Zeitung (1875). i19: Schol. Pausanias. 19: Etymolog. III. but it must have lain somewhere east of the Olympieum. 6o. mother. To. athletic contests. v. io. is-x6. Such cases (phonoi dikaioi) were tried at the Delphinium. i. Constit. 57. De Lenaeo et Delphinio commentatio. Bautneister's Denkmiler. as when a thief is caught at night or a footpad is slain by a man in self-defence or violence is done "' To dikastrion to epi DelphiniOi. Magnum.340 UNIVERSITY OF PENNSYLVANIA LAW REVIEW right to commit it. 932: Cf. military exercises and war. war and highwaymen): Cf. his death shall be unpunished: this is almost word for word the statement in Draco's tablet. self-defence against thieves and highwaymen. drink. Maas. 1 ) Plato coun- tenanced just murders. 36. 74: Bekker.""0 The law took account of various legal murders-the slaying of adulterers.115 Demosthenes speaks of this court as "the most sacred and awesome" of all courts. food. Philippi. e. p. Its exact location is conjectural. says Draco legislated no penalty for slaying adulterers. 8. or free children. sister. p. As for adultery Demosthenes says the crim- inal can be slain if he has committed the crime with wife. i:g. Cf. Pausanias. IX. law. men- tions athletic contests. I. C. companioAs in battle. "' Aristotle. v. Patm. 28. Anecd. opponents in athletic contests. unintentional slaying with one's own hand unarmed or with a dart. 1.. 179: Wachsmuth. 57. Pollux. where he says if anyone in self-defense shall slay a man who is unlaw- fully thieving. "'23. see Pausa- nias.. Calli:n. Cf. I. 24. VII.. 829. VIII. Theseus. 23.74. 53: Pausanias. 865 A. 18. '"Demosth. hodos. application of cold and fire. See Isocrates Adv. s. also Plutarch. XL. he also mentions deaths at the hands of physicians. 255. ts 23. held at the temple of Apollo Delphi- nius and Artemis Delphinia. pp. 23. 3 (adultery. IX. Harpocration. . epi Delphiniai. athletic contests and war): Demosth. xvi sq. 1. VIII. Plato. p. gr. 23. on Demosth. An example of adultery is found in the first oration of Lysias (On the Death of Erastosthenes)."1 Solon added a law about thieving at night to the effect that it was lawful to kill or wound the thief if one were pursued or to hale him before the Eleven-at the option of the one concerned. concubine. i8gi. not far from the Aphrodite in the Gardens. suffocation whether by oneself or through the agency of another.' 17 No penalty was meted out if the case were proven. death caused by. Magn. The case was tried at the Delphinium before heliastic jurors-who replaced the ephetai probably at the end of the fifth century. daughter. On the myths of the origin of this court. line 37 sq. I. wrongly identified it with the temple of Apollo patr~jos in the agora. Jena Litter.. see Milch- h6fer. 23. A. and Aristotle is epitomized by Suidas and the author of the Etymolog. s. 53. 28. E. Der Areopag und die Epheten. B..

3. Besides these great courts of homicide there were two- others for the trial of less usual and less important cases. 'Aristotle. the Phreatto and the Prytaneum. On the 'Delphinium.. 23. 1. cf. oval depression in the rock. p. Constit. 13. gives the genitive Phreattou. Cf. pp.. H. Pausanias. I. "2. Athen. though we find en Phreaitouin Codex 2.76 and 78. ' To dikasterion to en Phreattai. Erl.. Der Areopag und Epheten. where he found. Anecd. or if a citizen slay a stranger under such conditions or vice versa. but it lay somewhere near the sea at the Piraeus.e 22 The criminal had to return to the Piraeus and plead 12 his case from a ship while the judges sat on the shore. Karten von Attika. VIII. this dative yields a nominative Phreattys (as in Pausanias. p.. i. 13. Philippi. wife or brothers. op. or Phreatt6. he gives no penalty where a brother slays a brother in a broil. Politics. Demosthenes uses the name only in the dative (en PhreattOi.. adds that the accused cannot cast anchor or put down a gangplank during the trial. and were accused anew of a voluntary homi- cide. and cf.Laws. Its location is not exactly known. Constit. In 869 C. Das attischc Recht und Rechtsverfahren. if the slain man began it.. of course. N. 428 sq. 28. cit. pp. pp. as Pausanias says. 13oo b 29. 17. etc. pp. gr. 23.). 11. as does Aristotle. where a bath-like oval depression with a small round hole in front has been found. Aristotle. Constit. 23. 28. 535 a.. see Philippi. he was condemned to death. Die Stadt.. 78. v. pp. At the former on the shores of the Piraeus.. A8. '. 77-78. I. 2. 1. zao. which he took to be the basin for washing and preparing the purple shell. Reisen und Forschungen in Griechenland. he adds that the "contriver thought it was the same impiety to . Photius. but found the means of "keeping religion unpro- faned". see the next note. 57. 56 and identifies it with the outermost point of the peninsula which bounds the harbor of Zea on the east. 3.. i). quoted by Harpocration." However. 11. 874 B. III. The orator says. "'Aristotle. I 28. says he must plead from a boat which does not touch the land. 230 sq. Bekker. Ulnchs. "' Demosth. 1. 18-19. see Pausanias.. This would explain the name as "Place of Pits. Aristotle.Theophrastus. s. THE HOMICIDE COURTS OF ANCIENT ATHENS a free woman or youth or in case of adultery or when one defends 12 himself from his father. 1. 311. mother. Milchhbfer. 78. Handbuch.: Gilbert. 55 sq. the framer of such an ordinance did not overlook the case of a criminal just because he was -nable to come to Athenian soil. LV.fol- lowed by . 325. Text. 57. 121 those were tried who had been banished for involuntary homicide and were not yet pardoned by the kinsmen of their victim. 57. Politics.: Lipsius. H. followed by Wachsmuth. 1 If he were found guilty of the new accusation. i73 sq. No trace of this court appears in the Draconian tablet. Demosth. 1. On the legendary origin of this court. if acquitted. children. 1. Pollux. 13oo b 29. x3o and 614 sq. IX. 23. Technologie. Blilmner. Demosthenes. he had to return into exile because of his 124 former crime. 28. ix. this was because of the pollution which his contact would extend to the mainland. places it at a point on the shore southwest of the entrance to Zea.

but later was trans- ferred to the old agora (which he assumes was south of the Acropolis following Thucydides. p. Der Attische Process. 320. XX. who gives the law in full..874 A. In Pausanias' day it certainly was on the north slope of the Acropolis. 382: Bursian. p.. op. etc. Its site is not fully established. Bd. 28. Biitticher believed he had found rem- nants of it there: Philologus. 131). I. whose striking precepts for his ideal laws were largely taken from existing Athenian laws (see Lipsius. Though the arguments of Curtius and Polant seem plausible. a little to the east (I. 1." (Secs. Consltit. 4. says no rem- nants are visible. ed. this theory was accepted by Schi5ll. II. 120. s. 62. cit. 120 secondly lifeless things-such as stones. Lipsius believes the court in question was always in the agora. 'Aristotle.12 The curious trials held here are mentioned by many Greek writers and appear to have comprehended three kinds of cases. cit. -Die Stadt Athen. 514. finally. II. 1. Philologus. 22 sq. 31r. Landeskunde und Topogr. that the Prytaneum after the . 1. 3x6. v. Laws IX. 'Demosth. 3) . Mitth... Lipsius dargebracht (x894). if a murderer were unknown or could not be apprehended. Hermes. In the first place. Suppl. see Curtius. op. 58 (based on Meier-Schimann. H. however. 78-79. 57..""7 and. Hellen. It is generally supposed that in the lapse of centuries several buildings bore the name. 2. s. Many scholars believe the original one of the royal period stood on the Acropolis.. Ancient Athens. wherever the building was: Das Aitische Recht und Rechtsverfahren. royal period ever stood anywhere but on the north slope of the Acropolis: see Frazer. IV. p. Zeitung. op. Constit. p. Archaeol. Geographic von Griechenland.: Har- rison. 302. Etynologi- cure Magn. Pollux. Bauineister's Denkmiiler. 143. p. I. Topographic. XVII. but Milchhifer. VIII. 76 (followed by Harpocration. x8. x8. Pollux. Vol. I. 172: Wachsmuth. v. Aristotle. io. p. exempts from its operation thunderbolts or "other fatal . Studien. x9. 221 sq. Karte VI (at the end of his Stadt- geschichte von. 212 and cf. I. I. 412: Wachsmuth. 362. XLVII. 51. Judeich. xo.. 46.death of a man by falling upon him. Pausanias. Plato. p. 211. 2. 3.) "To dikasterion epi Prytaneiai. For the elaborate theory of E. p. beams. II. Plato. and lastly was moved to the position given by Pausanias on the north slope of the Acropolis. and epitomized by Suidas.. ment before trial. see his Stadtgeschichte (189x).).. reproduced in Hitzig-Blfimner. 165-x68). 4. I. and near the top (Pausanias. pp. 185. 172. IiI (1867). which caused the. etc.342 UNIVERSITY OF PENNSYLVANIA LAW REVIEW * The last of these courts was the one held at the Pry- taneum. Gerhard. 5s. 65. cf. Griech. epi Prytaneiai. iS). I. and Marindin.. The theory has been attacked by VI (1872). see Hitzig-Bliimner. X. gives the procedure more fully. 13: by Lolling. 359 sq. 244: Pausanias. of Pausanias. Tafel 2). he was nevertheless tried here. Dirpfeld. and cf. 57. De Graccoruin prytaneis (iS8i). also states the law fully. (Mijller's Handbuch. Die Stadt Athen. 224-225.: for the position. p. 6o. Modifica- tions of his view have been made by Polant. and for a discussion of its location. I. Hageman. Rheinisches Aluscuin. The Prytaneum was the Hotel de Ville of Athens as of every Greek town. 439 and XIX. 1II. De foro Athen. VIII. 15: Aeschines. epi Prytanei~i. cit.. Photius. 85. that the Pry- taneum in the regal period stood on the Acropolis. 295: Petersen. 23.Athen. 4. pp. 3: cf. Bekker. his Attische Studien (I863-i864). Athen. 55). pieces of iron. and by others. leave a guilty man at large as to give up an innocent man for punish.. there is no real evidence. in Smith's Dictionary of Antiquities (3rd ed. Curtius. ed. i88i-i886).

A good idea of the Greek view that some person or thing was respon- sible is furnished by the subject matter of Antiphon's Second Tetralogy already mentioned. animal or thing was to blame and had to be punished before the defilement could be removed. S Aristotle. Manifestly the second case (and prob- ably the third) was merely an amplification of the first: if the human murderer could not be found. In the first case. where the murderer could darts from the gods." and makes no distinction between men falling upon the thing or the thing falling upon them: Laws. .we must keep in mind the Greek view of homicide.1 28 In order to understand the issues raised by cases of this kind. . The judges were not concerned with the question of how far either boy or youth was to blame: they merely had to decide who caused the death and the existing laws fixed the penalty. IX. From a hint in the passage from Plato in reference to the trials of unknown murderers (Laws. THE HOMICIDE COURTSOF ANCIENT ATHENS animals which caused the death of men stood trial here.6 Plutarch. The boy's father accused the youth of accidental homicide. the javelin. if it could be found. Constit. The question to be decided was. where cases of unpremeditated homicide were tried. We have but little "information as to how these trials were conducted. 874). must be tried. IX.. who was to blame? Manifestly it was either the boy or the youth. outlined at the beginning of this paper. 873 E. Here a boy was killed by running in the way of a javelin hurled by a youth practicing javelin throwing in the gymnasium. but a pollution had been brought to the com- munity and some person.I. z. If it were the javelin. IX. or if neither of them. we need only recall that Pericles and Protagoras are said to have spent a whole day 129 arguing a. Pericles. we infer that the procedure at the Prytaneum was similar to that in the other murder courts. the case (as actually happened) would be referred to the court at the Palladium. We must not think there was any lack of seriousness in the Greek view-point. the case would be assigned to the court at Prytaneum. For in the case of a murder not only had a crime been committed. 814 A. If either of the first two. Jehb. Attic Orators.similar question. the thing or animal which had been the agent in the slaying. Laws. 8723 E. . p. 57. 36: cf. 4: Plato.

Rhein. 11o.Solon. I. (1849). cf. according to the general assumption based on the amnesty law of Solon. pp. as well as animals. 1. 47. see Philippi. Aristotle. 1Z 'So Lipsius. Whether the court before which. . IX. when found guilty. ek Prytaneiou katadikasthentes hypo ton basilefn . io. even the bones of the dead being dug up and scattered beyond the borders. 71: Thucydides. 69: cf. if later found. idicio. still under pollution. 132 cast beyond the borders. Museum. 'Cf. 874 A. an island): Harpocration. XXIX (x874)." 130 Though the culprits--whether present or absent-were solemnly heard and condemned. Here the word order shows that cases of this kind were tried at a pry- taneum: cf. 6 (= the sea at Thasos.. . who fol- lowed Stahl. were persuaded by Solon to be tried by a court of three hundred nobles and that all were found guilty and exiled. plen hosoi .. as Cauer has shown.. 57. epi tyrannidi. pp. Plato ddds that the unknown murderer. p. more like the deodand trials of England. op. .Solon's 13th table) .. tried to seize the Acro- polis with the intention of setting up a tyranny. t Aeschines.. Constit. der Wissensch. i. who based his . was identical with the Prytaneum court under discussion cannot be decided on the present evidence. That the word "the condemned" (kata- dikasthentes) used in the passage of Plutarch cited refers to the companions of Cylon.13 1 to have been no proper decision (diagnonai) as in other trials. Herod. p. Rheinisehes Museum. to free the land from pollution. who in 612 B. r2o: Pausanias. Andocides. Gesellsch.344 UNIVERSITY OF PENNSYLVANIA 4W REVIEW not be found. . s8 sq. following the earlier opinion of Wester- mann. is generaliy assumed. We know that the tokens of slaying. 126. 23. 3. 244: Pollux. Laws. VI. ig (. . 78. . 481 sq. c. were. Cit. proclamation was made not against any suspect by name but in a more general fashion "against those who had per- petrated the deed and committed the murder. "Plutarch.: etc. VIII. V. 13' Many scholars believe that this decision was handed down by the Areopagus and that all such trials were held there. Verhandlungen der 40 Philologen-Versanimrnungzu Garlitz. there seems. owing to the fact that such trials were more religious than judicial in character. etc. .""3 trials of con- spiracy against the State (tyrannis) were tried. 4. De horicidarurn in Areopago Atheniens. and on the Amnesty law. C.'" 0 Others speak for Demosth. Gleue. pp.. Solon. "shall die and be cast forth unburied beyond the border". Berichte der sdchs. XLVI (1891). 151 sq. .13 4 Now in another passage Plutarch says the rem- nants of the conspirators.

q. It would seem impossible to get any other meaning out of the words "by the kings" (hypo ton basilen) in the amnesty law quoted. 2-4. g. THE HOMICIDE COURTS OF ANCIENT ATHENS the identity of the. the philospher makes no mention of it in his enumeration of eight necessary courts. B. But cases of this sort rarely happen at all even -in large cities. known to us. 395. who. 5). Busolt. 3. B5t- ticher. sitting with the King-archon as president. says the Areopagus tried conspiracies against the state under a law of impeachment enacted by Solon: however. s. p. however. 16&3. when men still had animistic conccptions of nature.. says Solon found the Pry- taneum in existence: cf. 140 which proves that it had by then outgrown its usefulness. 137 still others are content toleave the question in doubt. 273: he believes all the homicide courts were lim- ited in the fourth century B. C. Constit. Down to the fourth century B. g. p. p.1 3 8 It is only of importance to us -here in our later discussion of the age of the Prytaneum court. believes the prytaneum mentioned in the Annesty law of Solon was an old court no longer. 1306b. c. p. because of its religious character.. V. cf.. 5o. such as the court of the Phreatto is said to have been at Athens. Vol. trials of lifeless things must have had a greater im- conclusion on a statement to that effect found in the Scholium on Aristo- phanes' Equites. Lipsius. may have been important. xo8 . must gradually have lost its importance. an official seat (cf. Busolt. and that it had to do with the prytanes of the naucraries. 4. Aristotle. 16. also the Elymolog. v. Photius. Miller in Pauly-Wissowa. 1. " Jowetes Translation. cit. Reatekcyclopddie. p. Keil. p.. the courts at the Palla- dium and Delphinium seem to have kept their importance. and that was composed of the nine archons.und Rechtsaltertfimer. it. 'E. In his Politics. Magnum. op. He believes it may have sat at the Prytaneuin. 44s.). 16o. under the old religious supervision of the King-archon and his associates.. In this same passage Aristotle also mentions disparagingly the court of the Phreatto and says: "There may be a fourth court in which murderers who have fled from justice are tried after their return. p. Griechische Stoats.. C. In Aristotle's day it still continued. naukraria. he is here referring to his own day (the fourth century. ""IV. and conse- quently was not identical with the court under discussion. than to refer them to the tribe kings.two courts. C. op. were in charge of the Prytaneum court. cit. Solonische Verfassung. . as we shall see. 'E. quoted by J. Aristotle. von Sch~ffe. 2d ed. ' Cf. as we know from Aristotle. like that of the Phreatto. 347.. 8.1 39 Though in early times the Prytaneum court also. 131. 2." 141 In primitive days.

p. 430: Lipsius. D. Handbuch. and only had his wife and children as witnesses. never seems to have been formally abrogated down to the end of Greek days.346 UNIVERSITY OF PENNSYLVANIA LAW REVIEW - portance and would have been retained down into late times chiefly for conservative religious reasons.ingiving false testimony in a trial between the plaintiff and the brother of Euergus.und Rechtsalterliiner. 1o. 284. so injured an old freed woman who resisted them that she died in a few days. ef 1. 1. the case does not seem to have come up for trial at the Prytaneum. 4. i. "not to make a proclamation against any one by name but generally against those who had perpetrated the deed and committed the murder. and. I. cit. none of the second. and. since he was not present at the time.. if we except the trial of the axe of the first ox-slayer at 1 45 Athens at the feast of the Diipolia. 273: Meier-Schiimann. But that there were similar courts for the trials of inanimate things in other parts of the Greek world. 1 4 Of the third kind of case. Few examples of these curious trials have come down to us.. 1897. Dictionary of Antiquities. while trying to steal some furniture. 16: Busolt. x.10. who stated the law to him and advised him. 302. is evidenced by a few examples. until finally they be- came purely ceremonial in character. 1. 14 2 However. no examples are known. In the plaintiff's absence from home.2%." (Sec. This was a proceeding against the defendants . op. Isaeus. the court of the Prytaneum. 47 (Against Euergus and Muesibulus): its -feeble and loose style shows it is not by the great orator.) However. Gilbert. Griech. 512: "endlich beirn Prytaneion wurde nicht so- wohl ein wirkliches Gericht gehalten als vielmehr eine religidse Cerenonie vorgenoninen. the two defendants entered the apartment of his wife and children. Der Areopag und Epheten. by Lipsius). the trial of animals. 73. ' 4 Pausanias.. see article "Prytaneum" : E. p. The only one of the first class-of unknown murderers-known to me is found in an oration of the Pseudo-Demosthenes. " 1. The plaintiff went to the legal interpreters (the exegetai. Die Stadtgeschichte von Athen. op. Curtius. but by a contemporary. Euthyphrd. like that of the Phreatto.. though they are vouched for by late writers. cit. etc. i31: Smith. Constit. who expounded the law at Athens like the Roman interpretcs religionuin." Pauly-Wissowa. ii. 28. a species of mock trial. Aristotle. 1. 24: Plato. p. This shows that the same primitive animistic con- ception of nature was characteristic of the Greek mind gener- "All modern authorities emphasize the ceremonial character of these trials: Philippi. Staats. 69. 4 D and 9 A: Laws. p.. mentioned by Pausanias. . sq. Rechtsaltertiimer (4 th ed. as it still was in existence in the second century 1 48 A. cf. II. 24. p. 759 C-E and 775 A). for the plain- tiff was further advised to bear his misfortune and to perform the neces- sary religious ceremonies..

Celts and other primitive peoples. set up as a votive offering of the Corcyraeans. the dearth kept up and they were again advised in these words: "But you have forgotten your great Theagenes. Finally. cf. and set up in its old place in the agora. "' He won in boxing in 01. Gilbert. cit.. and 3. it. but fortu- nately it was caught in a fisherman's net and towed to shore. After this description of the jurisdiction of the five murder courts. After doing this. No. 9. Later on the lands of Thasos became unfruitful and the Thasians were advised by the Delphic oracle to bring back their exiles. c. Die Sieger in den Olympischen Spielen. cit. or I2oo according to Plutarch. pp. ' The Prosecution of Lifeless and Animals in Greek Law. Paus. 191-196. '" Pausanias. 34. V. VI. etc. in origin'and character. nos. 74-77. p. THE HOMICIDE COURTS OF ANCIENT ATHENS ally.. 285-303.. 56: F6rster. pP. 2-9. rcipublicae gerendae. cit. Praep.).found guilty and cast into the sea. 4: Hyde. on suddenly raising his head.. 75 (= 48o B. Panegyr. '"We also know that the murder procedure of Athens was imitated by other Greek states: see Isocrates. VI. 195. 1 the reader is referred to a recent article by the author. For his exploits see Pausanias. 76. nos. ii. i5. the most famous of the Olympic victors. No. the statue of another Olympic victor. V. and it was. iso. 52-175. 19o3). 4o K io. Teutons. 207). . During the royal period at Athens it must have greatly resembled the Council of Elders degcribd in the Homeric poems-and ii- must have played an important role in transforming the city from a kingdom to an aristocracy in which it was to be supreme. recounts how a former enemy of the victor used to come each night after his death and scourge his statue as if he were punishing Theogenes himself. no. P. 1. Fbrster." They did not know how to recover the statue. x5. who. g. op. our last problem will be to discuss their age and man- agement The Council of the Areopagus. op. VI. evang. which caused the death of a small boy playing beneath it. XXXVIII (19T7). ii. 185. C. where Pausanias says it was sacrificed to in his day as to a god. Hand- buch. 27.1 on the island of Thasos. Another'example is that of the bronze ox of Philesius at Olympia. Pracept. and in the panlratiun in 01. 535 and Lipsius. 2.. from which the'present brief one 4is taken. 4: etc. d. cf. p. 9-To: ef. X. 61g. receiving 1400 crowns in all according to Pausanias.1 40 The best example of such a trial is that of the statue 47 of Theagenes. VI.. but this appears to be the only case in which an actual tril and condemna- tion is recorded: e. had a similar history to' that of Theagenes: Eusebius. De Olympionicarum Statuis (Halle. 3. broke it against the belly of the ox: Pausanias. op. iIi. The man's son prosecuted it for murder. he won in other contests many times. the statue checqued his insolence by falling upon him and killing him. 9. 6. Euthymus of Locri (who won in boxing in Ols. American Journal of Philology. 148 For an exhaustive accounft of the trials held at the Prytaneum. was very similar to the old Council of Chiefs Nhich we find among the early Romans. and Hyde. Similar examples occur in Greek literature. 232 b.

art. it should be added that the archonship was founded about 7"o0 B. 8. 'Aristotle. when it was re- placed by lot. 3. polernarch (in charge of war affairs). 453 and n. Frag. and the archon. for it is possible the administration of the archons may then have been under-its supervision and already a popular modification of the Council may have taken place. after its importance had waned. 7. VII. Thucydides. 1. Graec.13 The remnants of political power which continued to cling to it many centuries later. The Areopagites were appointed from the archons by birth and wealth. 2-3. 5.' and this method of . the nine archons were entrusted by the Athenians with absolute power to deal with the conspiracy at discretion. especially of its judicial importance.. written in the early part of the fifth century *B. 2: Isocrates. for their old powers as chief magistrates thus went over to the generals. 6 (speaking of the pre-Draconian age): such a statement destroys the older views of the connection of the cphetai with the Areopagus: cf. p. see Botsford.. that Solon chose archons by lot from nominees chosen by the tribes. this however. Aristotle says that down to Solon's day the archons had no official residence. thus Aristotle. but later used the Thesmotheteum.. p.).348 UNIVERSITY OF PENNSYLVANIA LAW REVIEW For the pre-Draconian period Aristotle states that the Areopagus appointed all officers. 126.). 60). Abhandlungen der Sachs. g. is cor- roborative of this evidence. while the king used the Boucoleum. For the sake of clearness. 17 and p.. Curiously neither Herodotus nor Thucydides say anything of its powers. In another passage. speaks of the nine archons collectively. having the power to fine or punish all who violated 0 the laws as well as those who were convicted of immorality. Constlt. is a glorification of the Areopagus. but the responsibility 'in regard to Cylon's conspiracy was taken by one.6: ef. there was no interest in the constitutional antiquities of the Greek states. Areopagus. I. 1. der Wissenschaften. says the most important three officials of Athens before Draco were the King (archon). which shows that the later body was formerly a State Council. as is also the fact that the name "Council" was retained. i99 sq. He gives five stages in passing from royalty to aristocracy.. 5 2.. In a passage which bears on the early constitution of Athens... 8. Constit. C. e.). II. and that this -was the method in the Archonship of Telesinus (487-486 B. they had no special reason for mentioning it. C. is not out of harmony with Aristotle's view of the early supremacy of the Council. C. 126. The Eumenides of Aeschylus. says that during the Cylonian insurrection (end of the sixth century B. the view of Lange.election endured to the beginning of the fifth century. administered the government and guarded the laws. in the Encyclopedia Britannica (ifth ed. 46: Androtion and Philochorus (Muller.Under Draco it remained "the watcher of the ' Constit. C. Thucydides. C. he corrects it by saying that the nine archons were appointed by lot by the tribes from Soo nominees chosen by the demes. Gesellsch. 387. It was this change which made the archons of little influence. 3. however. 1. 22. Hist. This appears to be a mistake. each choosing ten. for Aristotle merely inferred that the method in vogue in his day was the same as in Solon's day. and before the fourth century B. m Despite Aristotle's statement. Consit. 394. 1. 3. and was followed by the appointment of a poleinarch. the archon the Pry- .

'Aristotle. but how far back of his time such distinctions go. 22. When it received this prerogative cannot be stated with certainty. 26. 'uAristotle. C. probably after the Persian Wars. As moral censor 110 it knew men's incomes and punished the idle. C." Hellanicus. how- ever.. says: "We are informed by tradition that in ancient times the gods alone demanded and rendered justice at this tribunal of murder. 2). g. (Aristotle. Halirrothius. Orestes and Daedalus. 5. ".of the Areopagus. '' E. Busolt and other writers had main- tained that the lot was not used before the time of Cleisthenes. We learn from Demosthenes. 1. 1651. 4 and 5.' 7 That Draco fixed in his murder code the dis- tinctions in cases for all later time has alreardy been shown. though his reforms tended to limit them. Constit. though the view that Draco found this already in existence is scarcely questioned. Solon.that in the fourth century not all archons became Areopagites. 66. 4. and these officials were elected by vote from 487 B. 5. Plutarch. 4. Grote. We are here. on Euripides.15 3 Under Solon it returned to its constitutional powers. C. The archonship was opened to the second class of citizens. gives four typical cases of premeditated murder being tried before the Areopagus in mythical days-those of Cephalus. Rcalencyclopddie.) In one respect Solon increased its powers.'" As protector of the laws it probably always had the power of inhibiting both in the Assembly and later in the Council of Four Hundred any measure it conceived to be disadvantageous to the state. Constit. Before Aristotle's work was discovered. 15 4 It recovered its administrative powers to a large extent after the Persian Wars. 23. The myths of the origin of the judicial powers . for whoever was in- jured by them could bring his case before the Areopagus. V.26. to the third in 457 B. and later by lot (30. THE HOMICIDE COURTS OF ANCIENT ATHENS laws" and saw that officials acted legally. concerned only with the judicial functions of the Areopagus-its jurisdiction over murder." . 2. 22. Orestes. Demosthenes.1 58 as'well as hints in the orators founded on them. Pauly-Wissowa. (594 B. as interpolated: it is too complicated a subject to be discussed here. 8. giving to it the privilege of trying cases of conspiracy. 4). 23. we cannot say. 4: most modem writers consider ch. (Aristotle.. . however.15 9 poifit to a great antiquity in the use of the hill of the Areo- pagus for a tribunal even if not for the Court of the Areo- taneum and the polenarch the Epilyceum: 3. This shows that the collegiate responsibility was post-Solonian. 'Aristotle. . 1648. says this "wird jetct von keiner Scite inehr bestritten. 'J. Miller. Schol.. 5).

how- ever. 2173. 14.. and the later Court of the Areopagus (Gerichtshof). '"Demosthenes is the first to explicitly affirm this: 20. see Hellenic Civilization (915). 6" The first direct evidence that the judicial competence of the Areopagus goes back even to Draco's day is late. Wright.3. cit. 26o-29: Busolt. The word dikazein in the law. C.16 Two late accounts even state that Solon founded this competence.. that though this statement is apparently confirmed by the fact that Draco in his homicide laws never mentions the Areo- pagites but only the Ephetai. The discovery of Aristotle's Constitution of the Athenians in 1890 164 has unfortunately added but little to settling this question. 1846).. art. 43. 3-4. 57. still this cannot be proven. 22.350 UNIVERSITY OF PENNSYLVANIA LAW REVIEW pagus. . ' ConstL..: and on Philochorus.. pp. carefully distinguishes between the hill called Areopagus (as a Gerichtssttte). 11VIII. pp. see Schwartz. Poste. 125 (Bekker's edition. 1. 'It was found in Egypt at the end of the year: the editio princepi is that of Kenyon. 1912 (2d Ed. Tgo sq. 11. Jan. 22: cf. i891.. Aristoteles und Athen. op. Gesch. II. Throughout this paper I have used Kenyon's edition of 19o3. It has given us much additional knowledge about the political and administrative history of Athens. p. 31o-318. 2 Solon. 51 and 66. a writer of the second century A. the best translation is that of Kenyon. he is doubtful of it. On the Atthid writers in general. since Solon's thirteenth table-the amnesty law already discussed-seems to show that the Areopagus already existed before his day. Atthis. Did Philochorus quote the Athenaitn Politeia as Aris- totle's? In American Journal of Philol. 7 sq. 162 Similarly Plutarch records that "the general state- ment is that Solon instituted the Areopagus. Aristotelis Res Publica Atheniensium (Berlin). D. therefore.""3 In one place. r912 (an earlier one being by E. shows a late redaction. and else- where. Androtion. P. though not before the Council. XII (189). H. and shortly after Androtiori's Atthis-Aristotle's chief source: see Schwartz. cit. Griech. The best annotated edition is that of Sandys. 23. 218o-2i8. For bibli- ography. Die Solonische Verfassung (1892). Internal evidence shows that the work was compiled between 328-325 B." 183 He adds. Though it is possible that the body which then tried murder cases was not different from the old administrative council (similarly the Spartan Gcrousia exercised an administrative and judicial function). 5: Keil. 23. in Pauly-Wissowa. Thus Pollux. how- " Lipsius.. believes all murder trials in early days were- held on the hill.. says Draco instituted the Epietai and that these judges sat in all the murder courts and that in addition to them Solon instituted the Areo- pagus. 157-158: law. Pauly-Wissowa. see espe- cially J. 89i). but it tells us little of the' judicial history back of Aristotle's day. Lipsius. 19. some years after the Politics. 23.) . I. op. Wilarnowitz.

1374a. says 8. as do also certain statements in the Constitution.'"' On the basis chiefly of the statements quoted from Pollux and Plutarcl. I. I. Suppl. 4 has nothing to do with murder competence. p. not all writers today accept this statement of the case..) left to the Areopagus its murder jurisdiction.. became.'" 8 The main contention of Sch6mann. 4. off.. that all murder trials before Draco's day were in the jurisdiction of the Areopagites. n. p. "'"In his De Arcopaga et Ephetis (Opuscula academica. the view first propounded in 1833 by Sch6mann 107 was long accepted by writers oil Greek law. how- over. (whole article." The statement in the Politics.. Bd.founded by Draco) and gave it over to the new Council of the Areopagus. p. but under his legislation were transferred to the board of judges called Ephetai instituted by him. P. one of the foremost experts on Greek legal antiquities. and that later Solon gave back to the Areopagus the most important part. However. says: "This tribunal [the Areopagus] neither despot nor. He says that the tyrant Peisistratus himself. C. '"Jahrbuch fur Phiol. 2. r3. Lipsius. 9. 8.): it was later modified by the author in Jahrbuch ffr Philologie. then. sgo'sq. presented himself. 4. 2o: on page 22 lie characterizes Sch~mapn's view-as improbable and without grounds for the pre-Solonian murder jurisdiction of the Areopagus. II. C. merely the Constlt. TIE HOMICIDE COURTS OF ANCIENT ATHENS ever. 157. 66. 135. Demosth. cases of premeditated murder.. the Areopagus.'1 9 He believes the amnesty law of Solon proves that the Ephetai sat in these courts before Solon and believes that the blood process belonged to'the Areopagus before Draco. 3. 23: see especially -pages 485 sq.). . ' Op. cit. 5. 1. 8. cit. In other words Draco limited the powers of the Areopagus. and again after Solon. being haled before the Areopagus for murder. p. CXI (1875). probably only refers to its political activity. 16. he says the tyrants (56o-1o B. 49. which statement would seem to bring the date of its judicial functions back at least to Solon (594 B. 1. as Aristotle says. pp.. 476-307): cf. and Si6 sq. which makes the Areopagus antedate Solon. had jurisdiction in murder cases. 23. which before him.oligarchy nor democracy has ventured to deprive of its jurisdiction. Under Draco. has recently found a vigorous defender in Gustav Gilbert. his Handbuch. in murder. Thus Lipsius denies there is any proof that the Areopagus existed as a judicial body before Solon and believes that the words of Pollux and Plutarch indicate that Solon took cases of premeditated murder from the Ephetai (. 4.

Fragm. speaks of its competence only so far as his authorities come into account. 'Cf. therefore. he believes that pre- meditated wounding.17 s for this assumption. Suppl. Pauly-Wissowa. XXIV. though we now know they did not sit in one-that of the Prytaneum. since in one respect at least we know his statement is incorrect. best explains the otherwise obscure statement of*Plutarch that Draco only mentioned Ephetai in -his murder laws and also the statement of Pollux that the Ephctai sat at the Areopagus 4s well as in the other murder courts. . He further believes that Draco took over the whole criminal procedure. p. 4 (after Solon). It is also possible to explain "'See ConstLt. however. however. It may. Fragm.17 0 He is opposed.. i652. since Aristotle. 6 (before Draco): 8. for he says that the Ephetai sat in all five courts. Bd. 4 (for Draco): 3. which he founded. on which Gilbert partly relied. poisoning and arson were first distinguished as special cases after Draco's legislation and then given over to the Areopagus. 275. J. and gave it to the court of the Ephetai.. probably intentionally. 58 (= Mfiller. be said in favor of Gilbert's reason- ing that the words aitiin phonou in the Draconian Tabtlet (line 12) and the statement of Pollux are best explained by his as- sumption. which. Philochorus. op. which he assumes was in the hands of the Areopagus before his day. as he points out. Miller 171 characterizes this reasoning of Gilbert as possible but incapable of proof. Dre- rup 172 has shown that a comparison of Aristotle's statements about the functions of the Areopagus. is omitted in Draco's tablet and is vouched for expressly for the first time by Demosthenes in the fourth century B. to the Draconian origin of the law about premeditated murder.352 UNIVERSITY OF PENNSYLVANIA LAW REVIEW "watcher of the laws" and the regulator of officials. p. Miller and most writers. Hist..*4. 394). '"Jahrbuch far Philologie. Graec. It is possible that the Areopagites in their criminal jurisdiction were called Ephetai until after Draco's legislation. proves nothing. believe that Pollux was mistaken. cit. " See the article on Drakon. C. as well as the fact that in cases of intentional and unintentional homicide different courts judged and that nothing is said about the Areopagus in the tablet.. and that it was given back to the Areopagus first under Solon.

in conjunction with Archestratus and Pericles. After Cleisthenes. however. 25. Pericles.. THE HOMICIDE COURTS OF ANCIENT ATHENS the absence of reference to the Areopagus in the Draconian tablet by assuming that Solon here substituted his own laws about wilful murder. Cases of impiety and the supervision of officials and the censorship of the morals of the citizens were then transferred. 2: 27.1 74 Similarly it explains Plutarch's statement that Solon instituted the Areopagus. in his Ancient Greek Literature. C.). as the class of citizens known" as Zeugitae were admitted in 457 and the lot became the method of electing archons. II. or to determine with any degree of certainty the time at which the ancient Council of the Areopagus received its judicial functions. C. 269- . The history of the Areopagus after Solon is briefly told. Aris- toieles and Athens. p.). its powers waned because of the introduction of the lot in the selection of archons. the words of Gilbert Murray. the Council seems to have received no abridgement of these powers. the democratic leader Ephialtes. uxth Fd. to the end of the Peloponnesian War (404) it was of no consequence politically. C. 13: "When a law was once passed at Athens it tended to become at once the property of Solon. we are not yet in possession of enough knowledge to settle the long-disputed question of the re- lation of the Ephctai to the Areopagus. After their expulsion.. From 462 B. ThCf. Greich. III. After the appointment of the Thirty Tyrants the law of Ephialtes was repealed and the Areopagus was again ""Cf. 1: 35. a notion partly due to the desire of later writers to ascribe to Solon the formulation of a com- plete constitution. though it seems prob- able that these functions came to it long before the time of Draco. (2nd ed. In the year 462 B. 2: Plutarch. II. 453. Aristotle says it retained its murder functions under the tyrants. it slowly changed its character through the annual admission of exarchons who had held office under a popular regime. the Assembly and the popular law courts. C. i86-T97. Encycl. p.. 9."" It still retained jurisdiction over wilful mhurder as well as over all cases in reference to the sacred olive trees.' 7 5 However..Botsford. the great 'nomothetes'." See Aristotle. As we saw. passed measures by which nost of its administrative functions were given over to the Council of Five Hundred. Busolt. By 487 B. Brif. Consfit. in the reforms of Cleisthenes (5o8 B. Geschich. see Wilamowitz.

v. 2. This is Gilbert's explanation of the word arislindgn. op. says judges chosen by lot (the word Ephetai.15s2 This court of the Ephetai consisted of fifty-one men. Politics. 35. i88 30. who wrongly includes the Prytaneum in their jurisdiction: ef. i. cf. I. sit in judgment in the three courts. Cf.. Bd. Opuscula Acad. 2. 125. Busolt. Andocides. But the Draconian iablet assumes they acted collectively. Suidas. IX. Acts of the Apostles. 57. Anecd. Z luAristotle. n. Even in the second century of our era it re- mained a murder court. 57. "'Cf. Wilamowitz. it received the guardianship of the constitution. Delphinium and Phreatto were tried. Constit. 1.354 UNIVERSITY OF PENNSYLVANIA LAW REVIEW made guardian of the laws when the democracy was restored. 7: Lucian. seventeen at each. Under Roman sway it led Athens: cf. 14: etc. ephetai. 17-18. 3. or noble birth. Pollux. i.. VIII. was dropped from the man- uscript). Isocrates... II. Cicero. Aristotle. Aristoteles und Athen. 180 Cases brought before the Palladium. 1. 179. 43. Griech.. and by the scholiast on Demosth. D. 5. 61 he says it is also possible that the uneven number was appointed. if used. Gesch. 17 9 Its activity seems to have ended about 40o A.. Cicero. Aulus Gellius. Platon. against which explanation see Gilbert: Jahrbuch ffir Philologie. 125: etc. cf. Suidas.. 94. the care of education. 74.. again. 196)."' . 37. The meaning . Handbuch. gr. Bis accusatus. assumes it had to do with the three courts at which they sat. Lex. 43. v. De natura decorum.. religion. s.. etc. I. cit. 12. In 403 B. n. XVII. v."1 ' before a jury of men called Ephetai. believes the number comes from 12 men from each tribe together with three legal interpreters. 1. s.. Etymol. Constit. Aristotle. 8. lines 1o sq. in the Draconian tablet the plural (kings) is used. op. 1.. VIII. Handbuch. Lexicon. Then it re- ceived new prerogatives-the trial of forgers and tamperers of the standard measures.. Tacitus. Demosth. explains the uneven number as including the king-archon: in n.und Rechtsalt. C. Griech. 2nd ed. etc. Lipsius. i8. avoid'a tie. . s. - "4The number is given in the Draconian tablet. (and four other places): Aristotle. n. 57.. 84). VII: Demosth.. line i9. Suppl. 1 (Of Draco's officials).. VIII. II.. Magn: Photius. which may refer to the yearly elected king-archons: so Lipsius. p..of the number is unknown: Busolt. It is wrongly given as 50 by Timaeus.. n. by a decree of Tisamenus (cf. believes the plural includes the king and the tribe-kings together. Constit. Curat. as already dis- Aristotle. 28.. Photius. 45. 4. 12. 1. II. I. Pausanias. I. says the king presided crowned. cit. ' Pollux.'" From then to the end of Greek history it retained its reputation for ability. 23. cf. under the presidency of the King-archon. i9. Demosth.s" The origin of the court. Thoedoret. 24. Maximus. " The Draconian tablet is warrant for cases tried at the Palladium. 55: Plutarch. 57.. Gilbert. 4. JV..18 3 all of whom were over fifty years old and of blameless life 1s4 and probably of eupa- trid. 136. 1. 23. suggests the number may refer to three classes of citizens. 136. 23. r (following Sch- mann. Harpocration. Annales. ephetai: Bekker. Constit. 65: Valerius. 489. Stoats.

18 8 Philippi was the first to throw doubt on the statement of Pollu that Draco instituted the Ephetai. Lexicon. p... akad. Suppl. ' The ancients derived the word from ephiesthai ("to appeal"): e. i53. according to Suidas. n. cf. i5: cf. Busolt also believes Draco founded the court. 125: Timaeus. pp. 57-reading toutois for toutous-d'oi pentekonta kai heis aristindin haireisthan. 53).. I. VIII. cit. Platon. Pollux. p. Gilbert. xx8 and the Schol. 7. and ed. says Philippi's argument "ist zum mindestens sehr Whoever does not follow Gilbert's rea- soning. n. Cf. I." . Handbuch. by showing that he probably made the mistake by a wrong reading of a passage on the Draconian laws in Demosthenes. I. I: he characterizes Philippi's reasoning as "ringlich. De Dracone legumlatore [1851]. He was followed by Lange. 493 sq. p. n. p.. In the first article he doubted Pollux's statement about the mode of choosing the Ephetai and in the later book he objected to the statement that Draco instituted the court. SuppL Bd. his article in Jahrbuch ffir Philol. Staats. Wilamowitz. Handbuch. Do Areopapo at ephatis. Philolog. See Philippi. cf. I: Wicklein. J. XXIII. Miller. F.. ffir Class. 479. cit. but later the term would- befit a judge's office of giving orders and information (. op. 8-9 (the account being derived from Clito- demus. Gesch. THlE HOMICIDE COURTS OF ANCIENT ATHENS cussed. . r25 (followed by C. I. It is more probable that it comes from the same verb in the sense of "to command. 87. 13-14. 2. Lange. Philol. 137. V.: he followed Sch~mann in the first edition of his Handbuch. Jahrb. n. Die Epheten und dcr Areo- pag. v.." and so is connected with ephetmW and ephetas (= commander. maintains that Pollux' statement that Draco founded the court of the Ephetai is reliable.und Rechtsalt. Pauly-Wissowa. Sch6mann. 497 sq. The statement in Timaeus can be explained from the same source: Sch~mann. ffir Philologie (x875).• though both PoIllux and Timaeus assert Draco founded it. (1873). and 2D3 sq. 5). and especially 6o4 sq. p. epi Palladioi): a slightly differ- ent version of the myth is given by Pollux. Bd. PP. Jahrb. Die Stadt A then. 3 sq. 5-6. but later changed his view on the basis of statements in Aristotle's Constitution. I. Jahrbuch fur Philologie. 2825 (art. Lex. on Aeschines. The idea ol command at first would have no legal coloring. 2. pp.1s Nothing as to its age can be deduced from the myths of its origin 187 or its possible etymology. g. Herrmann. Untersuch. Busolt. his Arcopag und Epheten (1814). 23. '" See Pausanias. Griech.: by Wachsmuth. 578.. pp. op. is doubtful. p. in Aeschylus Persae."Anweiser des Rechts. 136. 127. n. De ephetarurn Atheniensium nomine (1874). x: etc). Lipsius. go.' 8 9 Recently Philippi's arguments have been attacked by Gilbert.. 28. Sit- zungsberichte der bayr. believes this explanation of Philippi is possible but unnecessary.. s. "Law 43. must leave the origin of the court of the Ephetai unde- termined.. CV (1872). II.: cf. Another derivation is given by L. VIII. But if the character of the Draconian code is rightly looked upon as in essence a codification of customary law long "Pollux. I. who as already mentioned. rII. abet nicht notwendig": cf.: rejected by Lipsius.. 139 sq. 79. Gilbert. 234. N. Ephetai). 273. 15. I. 15 sq.

however. zo. C 18. like Pollux. whatever its origin. and he is followed by the authors. 1 1 then the state- ments of late writers. believes that they were first removed from the Palladium about 400 B. cit. I.of the Recueil already men- tioned. names one of 5oo dicasts trying a homicide case. Philippi.. 'VIII. C. i99. being replaced in all these courts by Teliastic or popular jurors. to be definitely con- ceived.. 177). Delphinium and Phreatto. 1o6 . who would sit. Gilbert. began. as most scholars today believe. s. " Cf.. pp. So Wilamowitz. that in the oldest times a court on the Areopagus had charge of all murder cases. 125: Miller. their interest.: Keil. the Ephetai.. to have gradually lost in reputation. rg reads: "darf man ouch hier der Annahmne sich cuneige dass Drakon nicht sowohl neues Recht geschafft alt bereits bestehendes sanktlioniert hat. as we have shown. Pauly-Wissowa. and prob- ably after the fall of the Thirty Tyrants in 404. C." u. in -a speech made shortly after 403-2 B... E. lose. Andocides. and later from the. XXIII. II. remained un- changed in its composition and form at least down to 4o9-8 B. But as degrees of guilt slowly grew and. for Isocrates. both premeditated and unpremedi- tated.. Gilbert's idea is different. as we learn from a statement of Pollux. p. Delphinium and Phreatto. 492 sq. C. C. V.. on p. Demosthenes. cit. in the dif- ferent localities-at the Palladium. 16-17. C. believes this statement refers to the period before 409-408 B.356 UNIVERSITY OF PENNSYLVANIA LAW REVIEW in the making. g. 2825. that Draco fotinded the Ephe- tai. p. 318 sq. or perhaps to limit its functions. Whether the Areopagites were then called Ephetai or whether judges of this name were later appointed by Draco to render the work of the Areopagus easier. The court of the Ephetai. if not by the beginning of the fourth century B. as we have seen. 1. on the other hand. Jahrbuch far PhiloL. . mentions 7oo judges in a process before Ephetai. as the nature of the case demanded. w.'" Consequently this change took place somewhere between 408 and 402 B. op. It appears.have been taken from the Areopagus and tried by the later court of judges. Bd. . Suppl.. iso the latter connects this change with the psephisma of Patroc'leies (ef. Solonische Verfassutnq. 2. Arisloteles und Athen. 54.195 By Aris- totle's day. as we conclude from its being mentioned in the Draconian re- vision of that date. C. cases of homicide would naturally.19 3 A change certainly took place soon after 408 B. cf. Lipsius. p. and he believes that the Ephetai were first removed from the Delphinium: Gilbert. 92 cannot be stated with any degree of certainty.. In any case it is probable. op. 59.

e. 897 (cf. cit. slope of the Acropolis: Milchhbfer.. i. 107 sq. CXLI.-PP. p. Griechlische Staafsaltertbmer.. which lends support to the idea that the judges. Cit. 4). Gesch. Handbuch. inserts dikastai or heliastai (dicasts or heliasts). 2. pp. however. 361 sq. p. cit. 2'For fuller particulars see the article by the author already noted in Amer. 30. Pauly-Wissowa. p. s. Suppl. 2nd ed. Harpo- cration. 38. copied Aristotle. Jahrbuch fir Philologie. n.und Rechtsalt. I. 358-365: Busolt. '" Of these the greatest was the Heliaea: Pausanias. On the name see Wachsmuth. 122). . let us briefly consider the age and management of the fifth court. 'kept still the old On the name ephetai..10 8 Lastly. 1 7 Draco could hardly have instituted the body. heliastic jurymen. Die Stadt Athen. on 898 and on the Vespae.. Judeich. '3. Kenyon supplied the word Ephetai from the citation in Harpocration. I. no. I. II. Handbuch.und Rechtsaltertilner. he thought. (with bibliography5. he probably. The regular number of jurymen in the fifth century B. Gniech. as noted above. pp. 748. op. 424. 234 sq.. Lipsius.. 10 6 Thus we may conclude that from Draco's day. 199 Pausanias. 2oo' 4 Gilbert. Handbuch.-Equites. 284 sq. n. I. Jahr. Heliaia. cit. 21 . which points to popular jurymen (heliasts). p. says diagnask~n de tous ephetas. on Demosti. Constit. 'Griechische Staats. 438-439. and Schol. After Pericles day it was subdivided into bodies of 5oo-with isoo reserves. 273 sq. VIII. Hermann- Thumser.. pp. I might add that Demosthenes. 355 sq. Lipsius. II. from citizens over thirty (Pollux. op. 8: cf.. 38 (cf. It is mentioned by many writers: Aristophanes. Ephetai. .. Text. Slowly heliastic courts of democratic origin selected by lot and not through influence arose and took over these functions. 438-439. . Bd. I1. 3). XXIII. and 290 sq. elected by lot (27 ibid. see Miller. says the missing word cannot be ephelai. p. but it probably sat on the south . 24. 23. each juryman was feed three obols (Equites. 2. Baumeister's Denkmniler.: cf. though elected by lot. Journ. 2nd ed. Gilbert. Die Stadt Athen. THE HOMICIDE COURTS OF ANCIENT ATHENS judges in these three courts were chosen by lot. 424 sq..: its location is disputed. 3. despite the opinion of Keil: op. v. 255): see Wachsmuth. Kaibel. or near the Agora. 1. 24o. V 2.. or on the southwest slope. where the later Odeum was: Curtius. 130. if not earlier. Constlit.: Gilbert. 2. Karten von Attika. and Griech. Erl.. 11. op. 88 and 772.. 2824- 2826. 358 sq. pp.. says the Thasians in their laws about lifeless things followed those of Draco in "' Aristotle. here inserted the word andres (men): see Stit und Text von Aristoteles' Athenai~n Politeia.. that at the Prytaneum. 275: Gilbert. Vol. Wachsmuth.. the Ephetai sat in the three courts under discussion. . whether-they were still called Ephetai or Heliasts cannot be decided.. Law.. Jahresberichte. in mention- ing a similar court on the island of Thasos. who. since the developmeiit of the murder process over a long period of time needed clarification. Busolt. Here the word for judges is missing in the manuscript of Aristotle. Phit (1917). as that is excluded by the word lachontes ("chosen by lot"). C. merely systematized the procedure. 4: dikazousi d' oi lachontes tault' ephetailJ. 57. 8. far Philol.. 37). Staats. 24. p.was 6ooo (Aristotle. XV. I. 56. Schol. 285-286.

Var. 2°0 In another passage he connects the origin of the Athenian court with the "Bouphoniaor ceremonial slaying of an ox at the annual festival of the Diipoliaheld on the Acropolis. 3. whereupon a priest named "ox-murderer" slew it and threw away the axe and fled as if -he were guilty of homicide. 2nd ed. Feste der Stadt Alhen in Alterium (1898). Suppl. Mythologische Forschungen. brought the axe to trial. III (1878). o. pp. VIII. for the . 2VI. IV. 58 sq. while the trials of animals surely go back to an animistic origin. reconstructed by J. cf. 2nd ed. '"For the ritual. Pl-lologus.. pp.: Botticher..: cf. 262 sq. 4: Porphyry. 1917. Mommsen. to Chap. 449-454. 304 sq. P. pp.358 UNIVERSITY OF PENNSYLVANIA LAW REVIEW Athens. and especially no. the peculiar features of whose ritual must be sought rather in 2-* 4 some form of totemism or allied primitive fact. PP. x866). i79. Mannhart. pp. ii. cf. 298. 6: Siniilarly the Schol.: Frazer. 35r sq. It is in no wise strange that a people. Bd. 28. 'On the subject. approached the altar and ate of the grain. pp.. Hist. no. festival in honor of Zeus Polieus a curious ritual took of the founding of the other Athenian murder courts. whether they go back only to the legislation of Draco or earlier.2 12 In the article already mei- tioned 203 I have shown that the trials held at the Prytaneum could have had nothing to do with this festival of the Diipolia.. who saw something divine in every fountain. in which barley mixed with wheat was placed on an altar and an ox. pp. as if they did not know who did this deed. says the court was Dracohian in origin. 20I. Septem. should have endowed all com- mon things with life and animals with responsible intelligence. 312 sq. 38. 2. The Golden Bough. -98 sq. App.ideas underlying them are based on the very primitive notion that things and animals are responsible agents. Cults of the Greek States. 01 At this which he says goes back to the age of Erechtheus. Yourn. 3o (taken almost verbatim from a lost work of Theophrastus. Aelian. we can be sure that the ceremonial trials held at the Prytaneum must have existed from remote times. PP. see Pausanias.. What- ever the .. Berlin. pp. 152-167. on Aeschylus. 88 sq. 3.: Robertson Smith. Philol. river and tree. XXII. II. Vol. I. 24. see A. which was kept for the purpose. Bernays under the title Theophrastos' Schrift iber Fr5mMugkeit. De Abstinentia.. Religion of the Senzites. In the Amer. . The citizens. I. Farnell. his Heorfologie (1864). Philologus.. Such animistic notions of nature belong to the infancy of races as well as of individuals.

First Tetralogy. e. Chap.. . 'to: and cf.2 0 7 show how far ani- mistic notions may survive among a highly cultured modern people. Oed. Hyde. caamity was sure to befall the community. "The Mediaeval Church taught the same doctrine. p. "On the Greek idea of national defilement and calamity. The numerous prosecutions of animals before state and eccles- iastical courts of Europe recorded from the ninth to the twentieth centuries. cf." 20 which laws were not repealed until Victoria's reign.. I. God's lieutenant on earth. Commentary on the Laws of England. see Anti- phon. 64 UNiv. Tyr. THE HOMICIDE COURTS OF ANCIENT ATHENS 359 The strange thing is that such primitive ideas should have clung to the Greek imagination throughout the history of the race and should have been countenanced by their greatest thinkers.. See Cope: Third Part of the Institutes of the Laws of England (168o). 57. r 6: Aeschylus. 78: Pollock and Maitland. the appeasing of the Erinys or avenging spirit of the dead man. The object of Plato's ideal legislation about the trial of things and animals was the same as that which lay-at the bottom of all Athenian murder trials. The Prosecution of Animals and Lifeless Things. 2 5 show to what extent the idea of the moral respon- sibility of animals may develop. were "forfeited to God. op PA. but leave their traces among those most civilized. i9o6: W. . 25 and iol. We know similar beliefs are characteristic not only of primitive peoples today. the oldest and deepest rooted in human nature of all laws. p. in the Middle Ages and Modern Times. History of English Law Before the Time of Edward I. History of the Criminal Law of England. 200 In the last analysis. & I" In the year 1846: see Stephen. W. LAW REv. A.. II. (May zx16). Bk. The laws of deodand in Eng- land. then. It is only when we understand the conservative spirit of Greek religion and ritual that we see how such ideas could be retained.. merely substi- tuting the daemons of Christian theology for the Furies of Mythology. which had caused the death of a man. i. 413: etc. Second Tetralogy. 8is: Sophocles. Blackstone. axiomatic in See E. whereby personal chattels. to be distributed in works of charity for the appeasing of God's wrath. Evans. it resolves itself into nothing less than the lex talionis.2 8 If this were not done and every attempt made to bring the murderer to justice. P. such as carts and wheels. I1. Eumenides. 6g 5s. The Criininal Prosecution and Capital Punishment of Animals. that is to the King.

9. it is merely the divine Nemesis on sin: if it is difficult to see why this man or that suffers. in which Orestes says: "Just meed may the unjust obtain! Earth.Thonissen was wrong in explain- ing the Prytaneum trials as an attempt to revive in the people 2 Lines 398 sq. you must investigate his family history and then you will be sure to find a commensurate sin somewhere there.ux. Greek literature has many examples of this sentiment: e. Xenophon. 856-859. The animal or thing must suffer because its act had aroused indignation and it was held to be responsible. not only among the Greeks. 256 (many references). Celts and Slavs. also.. though he treated Nemesis as a less prominent agency. or suffers beyond the merit of his offence. 212 Thus. I. Teutons. an animal which did an injury was given up to the injured party or his family. Westermarck has shown that among nearly all the Aryan nations of ancient Europe.360 UNIVERSITY OF PENNSYLVANIA LAW REVIEW. it really was given over for retaliation." in Sophocles' Electra. g. the Trachiniae." Inwoven with this retributive notion was the Greek idea of personifying inanimate objects. but it is incon- ceivable that the animal was given up as compensation." to which the chorus answers: "For law it is when on the plain 210 Blood hath been shed. but among the Romans. p. Origin and Development of Moral Ideas (i9o6-r9o8). had the same belief. (Swanwick's Translation). the "unforgetable axe of bronze.g. hear my prayer. I. Anabasis. primitive communities and lingering among those most advanced. . 484 sq. so that the victim or his kin might be revenged.: cf. mE. Nowhere is the Greek law of "blood for blood" more clearly stated than in a passage of Aeschylus' Choephorae. Sophocles. new blood must fall. Here there was no trial. and ye powers of Hades. If a man suffers. with his milder view of Fate. Aeschylus vindicated for the Greeks Heaven's way with mortals by his doctrifie that the law of "Righteousness" was everywhere. 2 "1 It was the action of the law of reprisal in the case of both animals and things.

.7 had the presidency here as in all the other homi- " See his Le droit pinal de la rpubfique Atheuienne (1875). 'After the passing of royalty. pp. widows. 2nd ed. etc. Constit. 48. the question so long discussed as to whether the fifty-one Ephetai had charge of it. law. . he was in charge of the Eleusinian mysteries. pp. 35. and on p. then. true to his inheritance. For the older discussion of the management. 57. when they may have been replaced by the king and tribe-kings. V. juxtaposed the five murder courts. Constit. Gesch. sacrifices. 43.. 48 and 399. 2. 9o) says the King-archon. n. though the Ephetai. heiresses. was the guardian of orphans.. 75: Aristotle. go: cf. games. 41-52. see Busolt. This is directly at variance with Aristotle's statement and the probabilities of the case. owing to the fact that its jurisdicti6n was limited to rare cases of a ceremonial and relig- ious character. have been settled by an authoritative statement in Aris- totle's Constitution to the effect that both king and tribe-kings had charge. 696. p. v.. who in one place (VIII. p. believes that down to Solon's day the Ephetai sat in all the homicide courts. for a r6sum6 of different theories presented to explain these trials in the Middle Ages. 234.. OF PA. the Delphinium and Phreatto.. never had anything to do with the Ephctai nor their heliastic successors. I. VIII. op. Demosth. Philol. 1652. The same mistaken explanation has been offered for the trials of animals in the Middle Ages: see the" author's article in 64 UNIV. = As Pollux in one passage says: VIII. in Pauly-Wissowa. x8 sq.ACIENT ATHENS a sentiment for justice.: see Aristotle.215 Thus. op. Der Areopag und die Ephelen. 6. 213 As for the management of the court of the Prytaneum. 2o-2i. . Demosthenes (23. etc. cit. a sort of Lord Chancellor: see Demosth. s. Harpocration. THE HOMICIDE COURTS OF. Histor-Classe (x89i). ='57. Lipsius. 56. ephetai. 85 (cf.2 ' 6 The King-archon. on the other hand. the Lenaea. in another (VIII. 414. Lipsius was the first to point out that the king and tribe- kings acted together.. were in course of time replaced by heliastic jurymen appointed by lot. already . x: Pollux. the royal name was retained as king- archon (archtin basileus). 120) the tribe-kings (phylo-basilcis) were in charge. in all probability the court at the Prytaneum. 35. II. since through sad experience they had come to know right only as might. 2. since on him devolved the sacred rights connected with the old name of king. P. 27.. 4. he says they may have sat in the Prytaneum even down to Aristotle's day. i2o: cf. The eponymous archon. in charge of the courts at the Palladium. Gesellschaft der WUr- sensch. Sitzungsberichte der sdchs. however. cit. Miller. 131). The mistake probably grew out of the fact that the source of both these writers. Griech.noted.. LAW REv. Anthesteria. 65-77). 2"14 and the discrepancy in two statements of Pollux. see Philippi. p.. "'Cf. n.

e. Griech. finally retained only religious functions.362 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1 cide courts. kings. 57. Walter Woodburn Hyde. "'Aristotle. The four Ionic gentile tribes of Attica. VIII. h0geononia dikasttrion. s. ill: Aristophanes. "The population of Attica was originally divided into four tribes. University of Pennsylvania. Bekker.und Rechtsall. In primitive days. 2. 1. -r1 In early days doubtless the court at the Prytaneum was important. Hopletes. in enumerating eleven changes in the Athenian Constitution before his day. Sit- ting in judgment at these trials was probably their last function historically.. says the people in the days of Ion were divided into tribes and cho:. but gradually it lost its influence. v. The origin and functions of these kings are little known: they probably from the first enjoyed both religious and legal functions. Aegicores and Argades.. They were retained because of their ceremonial and religious character to the end of antiquity. Pollux. Aristotle...19 had gradually lost all political significance and their chiefs. 6 sq. The College. 31o. . i. Aneed.. dating from the remotest antiquity. p.. Geleontes. 2: Harpocration. Constit. 349: Busolt.: etc.e kings. 273. 41. the trials of things must have been common. Constlit. gr. Staats. Suidas. each being presided over by its king. especially the supervision of sacrifices: cf. Fragm. . when men held animistic notions of nature.