THE HOMICIDE COURTS OF ANCIENT ATHENS.

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-
tingencies.
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.)
(319)
320 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

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.
 THE HOMICIDE COURTS OF ANCIENT ATHENS 321

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).
322 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

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.
 TIlE HOMICIDE COURTS OF ANCIENT ATHENS

slay the murderer; when he meeteth him he shall slay him." Is

Similarly in the Koran we read: "0 ye who believe. Retalia-
tion is prescribed for you for the slain." 19 As for the Aryan
peoples of Europe, the following data might be given. Among
the Romans blood-revenge seems to have been suppressed early,
though certain legends indubitably point to its existence and
represent it as objectionable. Among the early Germans Taci-
tue says compensation for murder was made by paying over a
certain number of sheep or cattle. 21 In the earliest days the
kindred of the victim seem to have had the right of choosing
between accepting compensation and exacting revenge; later on
public opinion demanded and still later the state required that
22
the blood-feud should not go on if compensation were offered.
Among the Gauls and early Irish, the judgments of the Druids
seem to have been awards based on arbitration, the injured
23 In
relative being allowed to redress himself as he wished.
Scotland blood-feuds have lasted into recent times; the Roman
Church recognized them by leaving the right hands of male
children unchristened, in order that they might deal a more
unhallowed and effective blow to enemies. 2 4 In England up to
the middle of the tenth century a manslayer had the choice of

"XXXV, i9.See the article on Retaliation and Compensation Among

the Hebrews, by D. W. Amram of the University of Pennsylvania Law
School, in the Jewish Quarterly Review (new series, Vol. II, No. ii, 1911,
pp. 191-211).
" IT, 173; Cf. XVII, 35 (Rodwell's Translation, 1876). Among the mod-
ern Arabs the slayer owes his blood to the family of the victim: see Burch-
chardt, Notes on the Bedouins and Wahabys, p. 85.
"See Mommsen, History of Rome(1894), 1, igo.
"Germania, ch. 21.
"See J.R. Keyser, Efterladle Skriften (Christiania, 1865-i867), II, Pt.
II, p. 95; Pollock and Maitland, The Hstory of the English Law before the
Time of Edward I (8W), I, p. 46 sq., cf. Kemble, The Saxons in England,
x, 2-, 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, and
commiting to the State the duty of compelling the injured person to receive,
and the wrongdoer to piy, the settled amount."
38See Sir Henry Maine, Early History of Institutions (1875), Iecture
IT; d'Arbois de Jubainville, Des attributions judicaires de I'autorith pub-
lique chez les Celtes, in the Revue Celtique, VII, 5; Ancient Laws and Ilsi-
tutes of Ireland, III, LXXX and LXXXIX.
'See Mackintosh, The History of Civilization In Scotland, I, p. 29.
324 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

paying wergeld or having a feud with the victim's relatives.2 3

In Friesland, Saxony, and Switzerland this custom prevailed
down to the sixteenth century. 26 In Italy it lasted into the six-
teenth and seventeenth centuries, 27 and it still exists. in several
European countries, as, e. g., in Corsica,2 8 Albania 2 and Mon-
tenegro.3 0 We shall omit examples of its occurrence among half-
civilized and savage communities,3 1 and return to the history
and development of the laws governing. homicide among the
post-Homeric Greeks.
The Greeks throughout their later history looked upon their
laws-especially those framed for the protection of life--as
divine in origin. Their early legislators were believed to have
been specially inspired by divine power, as, e. g., Lycurgus; the
Spartan, by Apollo and Minos, the Cretan, by Zeus. Plato
taught that it was a fundamental factor in the prosperity of
any state to inculcate this notion. But such a conception of the
divine origin of Greek law was not confined to legend nor phil-
osophy. We see a remarkable example of it in the orator Demos-
thenes, who expresses it to a jury of average Athenians, and
so his words represent the typical if not the critical view of the
Athenian people. In a passage in the first oration against Aris-
togeiton, 2 the orator opposes Laws (nomoi) and nature
(physis). While the latter is a thing "irregular, unequal and

"See Pollock & Maitland, op. ct., r, p. 48. After the Conquest, a law
against private revenge was passed; see Cherry, Lectures on the Growth of
Criminal Law in Ancient Comnunities (i8go), p. 85.
' See Gunther, Idee der Wiedervergeltung in der Geschichle und Phil-
osophic des Strafrechts (i889-i8gs), i,2o2 sq.
"See J. C. L Simonde de Sismondi, Histoire des ripubliques italiennes
du inoyen age (1826), XVI, 456.
"See Gregorovius, Wanderings in Corsica (1855), T,pp. 176 sq.
See S. Gopcevic, Oberalbanien und seine Liga, pp. 322 sq.
See J.G. Kohl, Reise Nach Istrien, Dalmatien und Montenegro (i851),
I, pp. 4o6 sq.; G. Popovic, Recht und Gericht in Montenegro (1877), p. 69.
See Westermarck, op. cit., pp. 479 sq.
Orat., 25, Secs. 15-z6. Throughout this paper I have used the number-
ing of Demosthenes' orations in Dindorf's edition- orations I-i9, from the
fourth edition by F. Blass: orations 2o-6i in the third edition. Oration
25 has been suspected of not being genuine since the time of Dionysius of
Halicarnassus; the question of its genuineness, however, 4oes not affect its
subject matter.
 THE HOMICIDE COURTS OF ANCIENT ATHENS

peculiar to the individual possessor," laws are "regular, common

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

time, 38 was based on the idea that where a murder had been
committed, not only was it a crime against the.gods and men,
but that also a pollution had been brought upon the community;
and inasmuch as the moral equilibrium had thus been disturbed,
it could not be righted until the defilement had been removed
from the state by the proper punishment of the murderer, who,
by his act, had caused it. The causation of the pollution was,
as we shall see later, extended to animals and lifeless things as
well as to humans. It made no difference what kind of agency
had caused the pollution; the main thing was to find the agency
and punish it. Thus all through antiquity murder trials were
held in the open air, in order that, as Antiphon says,3 9 the judges
might not be contaminated by sitting under the same roof with
one accused of crime. Thus the pollution was looked upon as
physical as well as moral. This conception of homicide, 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, was never lost sight of. By his act the murderer
had become impure and this disqualified him from communing
with the Gods. 41 The tainting of a temple or altar would
cut off others from such communion, by brifiging uncleanness
to the very places to which men resorted when in quest of
cleansing. The prosecutor at the funeral of the slain man, there-
' In the poems of Homer, if the murderer remained instead of fleeing,
there was no idea that his presence brought a pollution on the land: thus
Orestes, in the Odyssey, T, 298 sq., needed no purification for his premedi-
tated slaying of Aegisthus.
- V. zi; cf. Aristotle, Constitution,57, 4. Thus homicide trials were held
epi tai Palladiai ("at the Palladium"), epi tai Delphiniai ("at the Delphi-
nium"), etc., as we see from Aristotle, op. cit., 5n, 3; Demosth., 23, 71 and 74,
and 76, etc.; Pausanias, in one passage, r,28,
i, says to d'eduPrytaneidi ("the
court in the Prytaneum"), though he uses the preposition epi of the other
courts, a difference proba'bly without significance. Similarly the ancient Ger-
mans held their courts in the open air; see Grimm, Deutsche Rechtsaltertiilmer
(ed. Heusler und Hfibner, I&Mg, PP. 793 -sq.
"Miasmna or agos; the first properly means "stain or defilement" (cf. Lat
piaculuin), and is used by Aeschylus, in the Eumnenides, i6g and 231; Againein-
non, 16.5; Septem, 682; by Sophocles, in the Oedipus Tyrannus, g7 and 1052:
by Euripides, in the Hippias, 35. The second term means "curse" or "pollu-
tion," and is so used by Sophocles in the Antigone, 256: by Aristotle, in the
Politics, 5, 3, r: by Thucydides, i, 126: in this passage Thucydides calls the
polluted hoi enageis.
'In the Antiqone, o44, Creon rightly says "no man can pollute the
gods," i. e., the pollution only extended to earthly agents.
 THE If OMICIDE COURTS OF ANCIENT ATHENS

fore, uttered a solenin denunciation, in which the murderer was

warned to keep away from all public places, sanctuaries, assem-
blies, agoras, etc. 4 2 The same denunciation was repeated in, the
agora by the King-archon. 43 The pollution continued until the
manslayer had expiated his crime by the proper ceremonies or
by death. 44 The pollution might keep up for centuries, where
the state rather than an individual was primarily concerned.
Thus at the outbreak of the Peloponnesian war in 431 B. C., the
Spartans sent ambassadors to Athens demanding that the Athen-
ians "drive out the pollution of the goddess." This referred
to the slaying of the fellow conspirators of Cylon, during his
rebellion nearly two hundred years before, after they had accepted
the promise of safety at the altar of the Euuihenides. 4 5 If the
murderer ran away and returned later and was seen walking
in the proscribed places, the public prosecutor could carry him 46
off to prison, where he must remain until he was tried again.
He was safe from molestation so long as he stayed away and
whoever, under these circumstances, slew him, was himself
47
treated as a murderer.
Because of the religious origin and character of homicide
laws, they, like everything else connected with Greek religion,
changed but little in course of time. The vitality of the idea

See Demosth. 2% x58: cf. 23, 37; Antiphon, VI, 4: cf. V. 1o; Sophocles,
Oed. Tyr. 236 sq., where the denunciation of Laius' murderers put into tht
mouth of Oedipus by the poet was borrowed from Attic law. Plato, Laws,
IX, 871 A, says that if the kindred fail to prosecute, they also become involved
in the pollution, and become hateful to the gods.
"Aristotle, Constit., 57, 2 and 4.
"In the Eumenides of Aeschylus, 230-231, the chorus of Furies threatens
to pursue Orestes to death: again, in 421-423, they say they will hound him
to "where to rejoice not is the appointed doom:'
"The conspiracy of Cylon (612? B. C.), is described by Herodotus,. V,
7z. Thucydides, 1, 126; Plutarch, Solon, 12 and i9. 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, but slew them
instead. The clan was tried and banished in 596 or 595 B. C. at the instiga-
tion of Solon, but it returned later. The descendants of the guards who
slew the conspirators were still in the city in 43! B. C. 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 certain
helots some time before, who had taken refuge in Poseidon's Temple at
Tacnarum; see Thuyd., I, 128.
'"Demosth., 23, 80: law, 23, 28.
1 Demosth., 23, 37.
 328 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

that they should remain constant is attested by the fact that

Plato, in the fourth century B. C., 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.4 .
Though changes occurred in other laws, in one domain, that of
homicide laws, the Athenians were singularly conservative in
preserving them intact and inviolate. 49 The criminal laws at
Athens, as elsewhere in the ancient world, formed the most im-
portant part of the whole body of law." While the rest of
the legislation of Draco, the first Athenian to draw up a code of
laws, was changed or abrogated a few years later by Solon in
the interests of less severity,5 1 its distinctive part, the laws
governing homicide, not only was left unchanged by Solon, but
under the democracy instituted after the fall of the Four Hun-
dred in 411 B. C., and still later, in the time of Aristotle 52

Laws, IX, especially 872-873: in 875 A, 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, or, if he did know, would he be able to do what
was best, for "the true art of politics is concerned, not with private but
with public good: for public good binds together states, but private only
distracts them."
" Demosth., 23, 62, in speaking of Draco's laws, says that whoever,
trate or citizen, should cause them to be "defeated" or "altered," shallmagis-
with
his children be disfranchised and his property shall be confiscated. Plutarch,
Solon, 12, says of Solon's laws that each one of the thesinothetae swore at the
stone in the agora, that if he broke any of them, he would dedicate at
Delphi a golden statue as large as himself.
0&Sir Henry Maine, Ancient Law (1883), p. 367, emphasizes the
ponderance of criminal over civil law in all ancient codes. Thus in pre- the
Germanic codes civil law has trifling proportions in comparison with criminal.
The sanguinary penalties of Draco's laws indicate the same character. Only
in the leges XII tabularuntat Rome, "produced by a society of greater legal
genius and at first of gentler manners, the civil law has something like its
modem precedence." He sums the matter up by affirming "that the more
archaic the code, the fuller and minuter is its penal legislation."
'So Aristotle, Constit., 7, x: Plutarch, Solon, 17, states that Solon
repealed all Draco's laws, except those concerning homicide, because they
were too severe and the penalties too great :.cf. also Aelian, Varia Historia,
VIII, 10.
"Aristotle, Constit., 4, 1, gives Draco's activity as the year of the
Archonship of Aristaechmus, Olympiad 39 (6z4-1 B. C.); cf., also, Tatian,
Adv. Graecos, 41; Clement of Alexandria. Stronuta, 1, 366; Suidas, Lexicon.
s.v.Drakon, etc. Andocides, De Myst., 81 (cf. 83), says Draco's laws were
called thestnoi, while Solon's were called noinoi. Aristotle, however, called
Draco's enactments thesmoi in one part of the Constitution, 7, r, and nornoi .
in another, 41, 2.
 TE HOMICIDE COURTS OF ANCIENT ATHENS

and Demosthenes 5 3-three hundred years after Draco's codi-

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

"See Thucydides, VIII, 97: cf. Botsford, Hellenic History, ch. XIX.
"A portion of this activity was concerned with the passage of a decree
limiting the power of the Council of Five Hundred, determining its relation
 330 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

(anagrapheis) was appointed to remove inconsistencies from the

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

let legal extracts be read in court are mn'rked nonzoi (laws).

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; consequenfly fhe speech would becoffie separated from
the legal extracts, the IAtter being omifted' when the former Was
kept for its literary merit only. 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; or if some way ihy
were copied from the actual' laws, inasmuch as they correspond
67
with known inscriptions exactly.
The various Athenian courts of honicide are not mentioned
in the Draconian inscription, but their names are known to us
from Aristotle, Demostheies and other sources.6 s From these
writers we learn' that down to the secoiid, cenity A. D. th'ere
were five different homhicide courts at Athens-the Are6pagus,
Palladium, Delphihiiim, Phreatto and Pryt'aiieum. The Dra-
conian inscription also, strangely enough, 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.69 Our next task will be
' See Gardner and Jevons, Manual of Greek Antiquies (1895), pp.
527-528. Since the discovery of Aristotle's work on the Conslittiion of
Athens, which treats largely of the jurisdiction of public officials and court
machinery, we can dispense almost entirely with the testimony of lexicog-
raphers and scholiasts, whose information we now know goes back to
that work.
'Const., 57, 3; Demosth., 23, 65-79; Pausanias, I, 28, 5-I, 8, Ii;
Pollux, Onoinasticon, VIII, 117-120: Pausanias gives the fullest account of
these courts; since they were, however, 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 .top6graphlical value,
but is merely an antiquarian excursus: see Schubart, Jahrbuchf Ur Philologie,
XCVII, 825 sq.;. Wachsmuth, Rhehtisches Museum, XXIV, 36, and Die
Stadt A then, I, 132; Hagemann, De Prytaneo, p. 28, n. 46. Others, however,
c. g., Curtius, Die Staatsgeschichte Athens, p. 289, believe that Pausanias
actually visited them and that they would be of interest to Roman travelers
for whom he wrote, inasmuch as the Romans looked on Athens as the
fountain head of their law (cf. Aelian, Var. Hist., VIII, 38), and because
they, on taking over Greece, raised the Areopagus, the most important of
these courts, to great honor again.
"Just why it is omitted from Draco's tablet cann6f'be definitely settled.
The most satisfactory explanation is to assume that Solon, in his revision
of Draco's murder code, abolished that article and substituted one of his
own. This would account for the fact that Draco nowhere in his legisla-
tion mentions the Areopagites but only mentions Ephetai, who, as we
332 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

to discuss as briefly as possible.these five courts, their compe-

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

on the last three days of the fourth.70 The King-archon, after

examining the case, assigned it to the proper court and in all
cases presided at the trial. 7 The plaintiff and the defendant
were each allowed to speak twice. 78 After the accused had
delivered his first speech, he had the right (unless a parricide 79)
to go into voluntary exile and thus not run the risk of being
condemned, neither the plaintiff, nor the judges having the power
to restrain him.8 0 If he returned, the victim's kinsmen could
slay him or hale him again into court, though they were not
allowed to maltreat him.' If he did not avail himself of the
permission to flee, but stood his trial and was condemned, he
had to stand the sentence of the court. If. the plaintiff, how-
ever, got less than one-fifth of the votes of the judges, he was
mulcted in a thousand drachmae.8 2 If the accused was con-
demned to death, his person was given over to the proper offi-
cials.8 3 The accuser had the right to see the guilty man suffer
the death penalty, a right which appears to have been a relic of
the old blood vengeance. 8 4 However, even after conviction, the
defendant could still be forgiven -and released by the kinsman
of his victim. Again if the murdered man, just before dying,
forgave his slayer, the latter's kinsmen could not prosecute."
This seems to be a remnant of the Homeric custom of pardon-
ing a murderer when 7vcrgeld had been paid.8 6 Such, in brief,
was the jrocedure in all murder trials in Athens.

"Pollux, VIII, 117: Antiphon, ibid., 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.
"Aristotle, Constit., 57, 4: cf. 56, 6 and 57, 2; Bekker, Anecd. gr. 310,
6 sq.
"Pollux, VIII, 117.
"Pollux, VIII,- 117: cf, VIII, 99-
"Demosth, 23, 69: Antiphon, V, 13.
Demosth., 23, 28: cf. Plato, Laws, IX, 871 D.
U Demosth., 23, 8o.
"Demosth., 23, 69.
Demosth., 23, 69.
WDemosth., 31, 59.
" It might be added that in Maina, the rocky district of Mt. Taygetus,
southwest of Sparta, murder is still, as it was in Homeric days, a private
affair between man and man. Feuds have always been common there.
334 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

From Draco's day, if not earlier, T Attic law distinguished

between three kinds of homicide, roughly corresponding to three
courts: premeditated murder (phonos hekousios or ek pronoias),
tried at the Areopagus: unpremeditated murder (phonos akou-
sios), tried at the Palladium; justifiable murder (ph onos dikaios),
tried at the Delphinium. In practice no middle ground between
the first two was recognized. Such a distinction is found only
in the Platonic theory, according to which slaying in anger is
recognized, as also different penalties according to whether the
deed is committed in passion, with intention urged on by feelings.
of revenge, or without premeditation.88 In general it must also
be said that Athenian laws governing homicide, though precise,
were far from scientific. Distinctions between various degrees
of guilt in different sets of circumstances were drawn and con-
sequently, as Jebb has said, "depended rather on minute tradition
than on clear principle." 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.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. Graeco-Italische Rechtsgeschichte (1884), wrongly assumes that

there was a distinction between premeditated and unpremeditated murder
even in Homeric times. Lipsius, Das Attisehe Recht und Rechtsverfahren
[based on M'eier-Sch6mann's Der Attische Prozess (88i-i886)l, I, p. i9,
easily confutes this. A good example of premeditated murder is found in
the Odyssey, XIII. 259 sq., where Achilles tells the disguised Athena that he
is outlawed for having slain Orsilochus. An example of unpremeditated
murder is found in the Iliad, XXIII, 85 sq., where the wraith of Patrochus
recalls to Achilles how he once killed a playmate at-dice in childish wrath,
though "not willing it." The acceptance of wergeld on outlawry was, as we
have seen, the same penalty in both cases.
"Laws, IX, 866 D, sq. Here Plato says a deed is done from passion
when men, suddenly and without intent to slay, kill on momentary impulse
and become repentant immediately thereafter, or from feelings of, revenge
when a man is slain and no remorse is felt: "And therefore we must assume
that there are two kinds of homicide, both of them arising from passion,
which may be justly said to be a mean between the voluntary and the
involuntary.".
"Attic Orators (1893), 1, p. 45. Though other kinds of evidence were
admitted, the legal contest largely turned on general probabilities (eilkota)
and so quite differently than in modern courts. The ability of the orator.
the ingenuity with which he could invert the facts, helped then more than
they do now.
"Antiphon, V, io, says this is the worst sin, comparable with sacrilege
(temple plunder) and treason.
 THE HOMICIDE COURTS OF ANCIENT ATHENS

were tried exclusively at the court of the Areopagus.0 ' This

was the oldest and most sacred of the Athenian courts. 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.9 4 The court was
held in the day time and not at night as has been generally
assumned.1t' Athenian law recognized three kinds of voluntary
homicide, where death was brought about by wounding, poison-
ing and arson.08 In each case intention (pronoia) seems to have
been essential.97 At the trial the plaintiff and defendant had
"Aristotle, Constil., 57, 3: Dcnxosth. 2o, 157, etc. The Areopagus was
called e bouli j ex Areiou pagou or Arei~i pagqi or simply I baule. The
form Areiopagos is found only in late inscriptions. The ancients mostly
connected the name with the god Ares, who was said to have been the first
to be tried on the Areopagus for the murder of Halirothius;.Paus., I, 28, 5:
Apollodorus, III, 14, 2: cf. Demosth. 23J 66: Euripides, Electra, 1258 sq.;
Hellanicus, frag. 69 (ed. Mfiller), taken from Euripides. Others explained
the name from the myth that the Amazons, servants of Ares, sacrificed here
to the god while they were beleaguering the Acropolis: Aeschylus, Eumenides
685 sq. Most modern scholars, however, derive the name from the altar of
Ares at the northeast foot of the hill: Wachsmuth, Die Stadt Athen, I,
p. 428, n. 2; but Pauly-Wissowa, Realencyclopddie, II, 227, s. v. derives the
name from Athena areia, who had a sanctuary on the hill. Gilbert, Hand-
buch der griechischcn Stoatsaltetfiincr,II (2nd ed.), p. 425, n. 4, derives it
from ara (curse), referring to the cave sanctuary of the Erinyes at the
foot of the hill; the Erinyes are called araL (curses) by Aeschylus, Eumneni-
des, 417, and this was the place where men made offerings and swore oaths:
see Pausanias, 1, 28, 6. 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, I, 46: cf. Philippi, Der Areopag und die
Epheten, p. 8 sq.
Demosth., 23, 65; cf. Antiphon, VI; 2 and 4.
"Antiphon V, iY: Pollux, VIII, uiM.
Herodotus, VIII, 52; Lucian, Bis accusatiis, 12, and Piscat, 42; Schol.
on Clemens Alexandrinus, Protrepticon,3, 3, 4; cf. Bekker, Anecd. gr. 1, 253,
27. It was held on the plateau at the eastern end, which is hewn in the rock
behind an altar-like block approached by fourteen steps from the south;
see Curtius, Atlas, BI. IX, 2: Wachsmuth, Die Stadt Athen, I, 25, x: Milch-
h6fer in Baumeister, Denkindilcr des klassischetz Altcrthums, I, p. 2oo (Article
Athen).
"Lucian, Hernot, 64, and De do'no, M8
"Aristotle, Constit. 57, 3: Pollux, VIII, 117: Demosth. 23, 24, and law
23, 22. On the subject of trauma ek pronoias, pyrkaia, phariaka, see Gleue,
De homnicidaruin in Areopago Atheniensi iudicio (G~ttingen, 1894), pp. 23 sq.:
and Gilbert, Handbuch, II, 426, n. 2.
"Aristotle, Constit. 57, 3: Ethics, 1, 16, x188, n. 31 (an example where a
woman was freed when no intention at poisoning could be proved). In law
"intention" was not only to wound, etc., but to kill;- see Lysias, 3, 40-43.
Lysias' Oration 4, "On Wounding with Intent," is an example of such a case.
If intention were not proven, the case was one of hybris (outrage or aggra-
vated personal assault): Demosth. 54, 24; cf. 2T, 34; or aikia (assau t or
affront), which was bf a lighter degree. and easier to sustain: Demosth. 21,
336 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

to stand upon two rough white stones, one of which was called
"Ruthlessness" (lithos anaideias) and the other "Insolence"
(lithos hybreos),98 where they took a most solemn oath, each
imprecating himself, family and kinY9 The penalty, in order to
give full satisfaction to the ancient blood-revenge, was the sever-
est-death and confiscation of property or exile.100 Only in the
case of a tie vote was an acquittal possible.""1 The penalty seems
to have been regarded as more ethical than juridical in prin-
ciple, for throughout antiquity the sentence of the Areopagites
was considered to be the expression of the most solemn truth
and justice.' 0 2 In cases of intentional wounding, where death
34-35. A good example of the latter is afforded by Isocrates, Orat. 20
(Against Lochites); here Isocrates calls the offence complained of both
hybris (Secs. 2, 7, 9, 16), and aikia (Sees. 5, 15) ; also Demosth., Orat. 54
(Against Conon); in this speech Demosthenes, like Isocrates, is dealing with
aikia, but also calls it hybris (Secs. i, 11, 17) : both orators thus seek to con-
bins the forces of two distinct forms of accusation. Cases of aikia were not
confined to the person injured; any citizen cognizant of the assault, could lay
the indictment before the thesinothetae.
"Pausanias, 1, 28, 5.
"This oath is given by Demosth. 23, 67-68; "it is no ordinary oath . . .
but one that no person swears in any other matter; he must stand on the
entrails of a boar, ram and bull slain by the proper person at the proper time
. . . to meet the requirement of religious law." Cf. Antiphon, V, ii. Sim-
ilar oaths, though not under such impressive circumstances, were sworn at
other times: thus Piso, in Lysias, Orat. 12, 1o, swears one to Lysias, impre-
cating destruction on himself and family.
"' Demosth. 21, 43: cf. Lysias, 3, 38; Antiphon, V, io: Aristotle, Constt.
47, 2. Meier's idea (De bonis dainnatirum, p. 18; cf. Meier-Sch~mann, Der
Attische Process,ed. i, p. 308), that confiscation only took place if the defend-
ant escaped the death penalty by flight after his first defence speech, was
shown to be tfalse by Philippi, Der Areopag und die Epheten, p. I 9: el.
also Thonissen, Le droit pinal, 24. Since the discovery of Aristotle's Consti-
tution we know that he did not use, in ch. 47, 2, the words to that effect which
appear in Pollux, VIII, 99: cf. Lipsius, Das Attische Recht und Rechtiser-
fahren, II (1o8), p. 6o3. Examples of intentional murder are plentiful; e. g.
Antiphon's First Tetralogy and Third Totralogy, and Lysias' great oration,
n. 12, Against Eratosthenes. Eratosthenes was probably, however, not prose-
cuted under an ordinary indictment for murder, 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, Die Attische Bcredsainkeit von Georgias
bis zu Lysias (x868), pp. 540-541: the result of this trial is unknown, but prob-
ably the accused, for political reasons, was not put to death.
Aeschylus, Eumenides, 735: Antiphon, V, $1: Aeschines, 3, 252
' Cf. Lycurgus. Orat. 12: Aristeid., Oral. 13, P. 171: Demosth., 23, 67; 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." On the wisdom of the court see also
Sophocles, Oedipus Colonests, 947 sq. (which passage Demosthenes may have
had in mind in the above statement); Cicero, Epist at Atticum, 1, 14, who,
in praising the conduct of the Roman Senate. says: "Senatus arejos pagos:
nihil constantius, nihil severius, nihil fortius."
 THE HOMICIDE COURTS OF ANCIENT ATHENS 337

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

akousioi, 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.10 8
According to Demosthenes, 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, after which he might return if he per-
formed certain sacrifices and purificatory ceremonies.10 9 Draco's
tablet says that if anyone kills the murderer, who, on being
convicted of accidental homicide, has gone into exile, or cause
him to be slain while he is away, he shall be subject to the same
penalties as one who has slain an Athenian. The exile can be
killed only if he has returned; or he may be arrested and not
be maltreated, nor can ransom be accepted under penalty of
paying double the amount of damage incurred by the murderer.
Aschines says that the victorious litigant in a case tried at the
Palladium had to strengthen his declaration with an. oath.1 10
This oath is given by Demosthenes as an "imprecation on self and
house." 111

and similar formulae in inscriptions: e. g., C. I. A. I, xis: IV, 1, 27 c: 1,,33 b,

If you owned the slave in question, religious payment was allowed: Anti-
phon, VI, 4. The punishment of foreigners (other than metics) was prob-
ably exile.
S'MC. I. A., , 6x, line ii sq.: cf. Demosth., 23, 45, and 71-72; Aristotle,
Constit., 57, 3; Pollux, VIII, xiS; Bekker, Anecd. 9r., 31r, 3: Pausanias, I,
28, 8-9: Harpocration, Lexicon, s. v. epi Polladiji (quoted from Aristotle, as
are also the epitomes of the other lexicographers, Suidas, the author of the
Etvmologicum Magnum, etc. A good example of involuntary murder is
afforded by Antiphon's 2nd Tetralogy, 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.
' 2 3 , 72: cf. Plato, Laws, IX, p. 877. On aidesis (forgiveness), see
Demosth. 21, 43; the murderer must get it from the father, brother and sons
of the victim, all agreeing; if one voted against it, none was given and the
exile could not return; C. L A., I, 6r, line i3 sq.: "[If there are no] such
persons, the relatives as far as the degree of first cousin [may forgive, if all
of them] are willing, after swearing the oath"; 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 slayer shall be admitted to the country by
ten members of the phratry, if they are willing. These persons shall be
chosen by the 5x from those of noble birth." Cf. this with Demosth. 43, 57.
We learn from the Schol. B. on the Iliad, II, 665, that the man could return
anyway after five years.
2, 87.
"'47,70.
 THE HOMICIDE COURTS OF ANCIENT ATHENS

One other kind of trial was held at this court-the crime

of instigating murder, technically called bouleusis; for com-
plaints were entered not only against actual agents, but against
those who urged others on to commit murder, on the principle
that qui facit per alium, facit per se, and consequently was morally
responsible for the crime. 12 It appears to have made little dif-
ference to the court whether death was intended or not. Gilbert
has shown that these cases were added to the jurisdiction of the
Palladium in the latter part of the fourth century B. C., having
been previously tried at the Areopagus.113 The penalty was the
same as that for the actual commission of murder: thus, if
death of the victim resulted, 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, exile
and confiscation of property, as in cases of wounding with intent
to kill, where death did not follow, at the Areopagus: if instiga-
tion were proven in an act which caused death, though no inten-
tion to kill could be shown, the penalty was exile, as in the
case of involuntary homicide at the Palladium. 1 4
. Besides wilful murder Athenian Law also recognized cer-
-tain cases of lawful homicide, i.e., where the accused could
fully admit the crime as intentional and plead that he had a

'C. I. A., I, 61, ine io: Andoc., De Myst., 94, P. 46. On "instigation,"
see the definition in Harpocration, s. v. bouleuseds; Forchheimer, De Areo-
pago, p. 30, defined it as id crimen, quo quis, quacunque sit ratione,ipse tamen
a necando manus abstinens, hominemnmorti studeat dare. See also Pauly-
Wissowa, Realencyclopiidie, III, pp. 1037 sq.: Gleue, op. cit., pp. 39 sq.
"' JahrbuchfUr Phitologie,Suppl. Bd. XXIII, -pp. 524 sq.: cf. also Lipsius,
op. cit., p. 29. This explains Harpocration's statement that according to
Isaeus and Aristotle such cases were tried at the Palladium, 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. See Sauppe, Orat. Attic, 1I, 235; Wilamowitz, Aristoteles und Athen,
1, 252, n. 138; Gilbert, Handbuch, I, 427, n. 3; cf. Philippi, Der Areopag
und die Epheten, p. 29; Jebb, Attic Orators, I, p. 6r, n. 3. Antiphon's Oral.,
I (Against a Stepmother) furnishes a case of bouleusis with intent, while
his Orat. VI (On the Choreutes) is one of bouleusis without intent- how-
ever, both of these cases were tried at the Areopagus before the transference
mentioned took place.
"' On the Palladium, see Milchhbfer, article Athen, in Baumeister's Denk-
niiler, I, pp. 179 sq.: E. Curtius, Stadtgeschichte Athens, p. 55: Busolt, Grie-
chische Stoats- und Rechtsaltertiiner,Ed. 2, I, Sec. 207, p. 273: Gilbert, Hand-
buch, I, (2d Ed.), pp. 421-428: Lipsius, op. cit., pp. i29, and. 6o9 sq.: cf. p. 6o.
340 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

right to commit it. Such cases (phonoi dikaioi) were tried at

the Delphinium.115 Demosthenes speaks of this court as "the
most sacred and awesome" of all courts.""0 The law took account
of various legal murders-the slaying of adulterers, opponents
in athletic contests, companioAs in battle, self-defence against
thieves and highwaymen.' 17 No penalty was meted out if the
case were proven. As for adultery Demosthenes says the crim-
inal can be slain if he has committed the crime with wife, mother,
sister, daughter, concubine, or free children."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. 1 ) Plato coun-
tenanced just murders, 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, held at the temple of Apollo Delphi-

nius and Artemis Delphinia; C. I. A., III, 932: Cf. Pausanias, 1, 19, 1. Its
exact location is conjectural, but it must have lain somewhere east of the
Olympieum, i. e., not far from the Aphrodite in the Gardens; see Milch-
h6fer, Bautneister's Denkmiler, ], p. 179: Wachsmuth, Jena Litter. Zeitung
(1875), XL, VII, p. 829. E. Maas, De Lenaeo et Delphinio commentatio,
Greifswald, i8gi, p. xvi sq., wrongly identified it with the temple of Apollo
patr~jos in the agora. On the myths of the origin of this court, see Pausa-
nias. I, 28, io; Pollux, VIII, i19: Schol. Patm. on Demosth., 23, 74: Bekker,
Anecd. gr. I, 255, 19: Etymolog. Magn. 358, 57. Cf. Philippi, Der Areopag
und die Epheten, pp. is-x6.
"'23,74.
"' Aristotle, Constit. 57, 3 (adultery, athletic contests and war): Demosth.
law, 23, 55 (adultery, athletic contests, war and highwaymen): Cf. 23, 6o,
where he says if anyone in self-defense shall slay a man who is unlaw-
fully thieving, his death shall be unpunished: this is almost word for word
the statement in Draco's tablet, line 37 sq. Plato; Laws, IX, 865 A, B, men-
tions athletic contests, military exercises and war; he also mentions deaths
at the hands of physicians, unintentional slaying with one's own hand
unarmed or with a dart; death caused by. food, drink, application of cold
and fire, suffocation whether by oneself or through the agency of another,
Harpocration, s. v. epi Delphiniai, quotes from Demosthenes, 23, 53; and
Aristotle is epitomized by Suidas and the author of the Etymolog. Magnum,
s. v. hodos. Cf. also Plutarch, Theseus, 18; Pollux, VIII, i:g; Pausanias, I,
28, To.
ts 23, 53: Pausanias, IX, 36, 8, says Draco legislated no penalty for
slaying adulterers. An example of adultery is found in the first oration
of Lysias (On the Death of Erastosthenes), in which Eratosthenes was
slain by a humble citizen who found him in bed with his wife and the
mu rderer pleaded justifiable homicide. The case was tried at the Delphinium
before heliastic jurors-who replaced the ephetai probably at the end of the
fifth century. See Isocrates Adv. Calli:n, 54.
'"Demosth., 24, t13.
 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, mother, children, wife or brothers.
Besides these great courts of homicide there were two-
others for the trial of less usual and less important cases, the
Phreatto and the Prytaneum. At the former on the shores of
the Piraeus, 121 those were tried who had been banished for
involuntary homicide and were not yet pardoned by the kinsmen
of their victim, and were accused anew of a voluntary homi-
cide.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. 1 If
he were found guilty of the new accusation, he was condemned to
death; if acquitted, he had to return into exile because of his
124
former crime.

'.Laws, IX, 874 B. In 869 C, he gives no penalty where a brother

slays a brother in a broil, if the slain man began it; or if a citizen slay
a stranger under such conditions or vice versa. On the 'Delphinium, see
Philippi, Der Areopag und Epheten, pp. 55 sq.: Gilbert, Handbuch, 1, 428 sq.:
Lipsius, Das attischc Recht und Rechtsverfahren, pp. x3o and 614 sq., etc.
' To dikasterion to en Phreattai. Demosthenes uses the name only
in the dative (en PhreattOi, 23,,76 and 78, though we find en Phreaitouin
Codex 2- ), as does Aristotle, Politics, LV, 13, "2, p. 13oo b 29;
this dative yields a nominative Phreattys (as in Pausanias, I, 28, i),
or Phreatt6. Aristotle, Constit., 57, 3, gives the genitive Phreattou,.fol-
lowed by .Theophrastus, quoted by Harpocration, s. v. Its location is not
exactly known, but it lay somewhere near the sea at the Piraeus, as Pausanias
says, 1, 28, 11. Milchhbfer, Karten von Attika, Erl. Text, 1, pp. 56 and
identifies it with the outermost point of the peninsula which bounds the
harbor of Zea on the east, where he found- an oval depression in the rock,
which he took to be the basin for washing and preparing the purple shell;
cf. H. Blilmner, Technologie, 1, pp. 230 sq. This would explain the name
as "Place of Pits." However, H. N. Ulnchs, Reisen und Forschungen in
Griechenland, i, i73 sq., followed by Wachsmuth. Die Stadt. Athen, 1, 325,
places it at a point on the shore southwest of the entrance to Zea, where a
bath-like oval depression with a small round hole in front has been found.
On the legendary origin of this court, see Pausanias, I 28, ix, and cf. Philippi,
op. cit., pp. 18-19.
'Aristotle, Constit., 57, 3; Demosth., 23, 77-78; Pausanias, 1, A8, 11;
Cf. Aristotle, Politics, III, 13, 2, p. 13oo b 29; Bekker, Anecd. gr., I, 311,
17; Photius, 535 a, 28. No trace of this court appears in the Draconian
tablet.
"'Aristotle, Constit., 57, 3; Demosthenes, 23, 78, says he must plead
from a boat which does not touch the land; Pollux, VIII, zao, adds that
the accused cannot cast anchor or put down a gangplank during the
trial; of course, this was because of the pollution which his contact would
extend to the mainland; see the next note.
"' Demosth., 23, 78. The orator says. the framer of such an ordinance
did not overlook the case of a criminal just because he was -nable to
come to Athenian soil, but found the means of "keeping religion unpro-
faned"; he adds that the "contriver thought it was the same impiety to
342 UNIVERSITY OF PENNSYLVANIA LAW REVIEW *

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

animals which caused the death of men stood trial here.1 28 In

order to understand the issues raised by cases of this kind, .we
must keep in mind the Greek view of homicide, outlined at the
beginning of this paper. Manifestly the second case (and prob-
ably the third) was merely an amplification of the first: if the
human murderer could not be found, the thing or animal which
had been the agent in the slaying, if it could be found, must
be tried. For in the case of a murder not only had a crime
been committed, but a pollution had been brought to the com-
munity and some person, animal or thing was to blame and had
to be punished before the defilement could be removed. 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. Here a boy was killed by running
in the way of a javelin hurled by a youth practicing javelin
throwing in the gymnasium. The boy's father accused the youth
of accidental homicide. The question to be decided was, who
was to blame? Manifestly it was either the boy or the youth,
or if neither of them, the javelin. If either of the first two,
the case (as actually happened) would be referred to the court
at the Palladium, where cases of unpremeditated homicide were
tried. If it were the javelin, the case would be assigned to
the court at Prytaneum. 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. We must not think there was any lack of
seriousness in the Greek view-point; we need only recall that
Pericles and Protagoras are said to have spent a whole day
129
arguing a.similar question.
We have but little "information as to how these trials were
conducted. From a hint in the passage from Plato in reference
to the trials of unknown murderers (Laws, IX, 874), we infer
that the procedure at the Prytaneum was similar to that in the
other murder courts. 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, IX, 8723 E, 814 A.
S Aristotle, Constit., 57, 4: Plato, Laws, IX, 873 E.
;6 Plutarch, Pericles, 36: cf. Jehb, Attic Orators,I, p. z.
344 UNIVERSITY OF PENNSYLVANIA 4W REVIEW

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

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

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

ally.1 40 The best example of such a trial is that of the statue

47
of Theagenes, the most famous of the Olympic victors,1 on
the island of Thasos. 148
For an exhaustive accounft of the trials
held at the Prytaneum, from which the'present brief one 4is taken,
1
the reader is referred to a recent article by the author.
After this description of the jurisdiction of the five murder
courts, our last problem will be to discuss their age and man-
agement
The Council of the Areopagus, in origin'and character, was
very similar to the old Council of Chiefs Nhich we find among
the early Romans, Teutons, Celts and other primitive peoples.
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.
'"We also know that the murder procedure of Athens was imitated
by other Greek states: see Isocrates, Panegyr., 4o K io; cf. Gilbert, Hand-
buch, p. 535 and Lipsius, op. cit., p. 61g; etc.
"' He won in boxing in 01. 75 (= 48o B. C.), and in the panlratiun
in 01. 76; he won in other contests many times, receiving 1400 crowns in
all according to Pausanias, VI, ii, x5, or I2oo according to Plutarch;
Pracept, rcipublicae gerendae, i5. For his exploits see Pausanias, VI, it,
2-9; cf. Fbrster, Die Sieger in den Olympischen Spielen, nos. 191-196, and
Hyde, De Olympionicarum Statuis (Halle, 19o3), no. 4: etc.
'" Pausanias, 1. c. 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. Finally, the statue checqued his insolence
by falling upon him and killing him. The man's son prosecuted it for
murder, and it was- found guilty and cast into the sea. Later on the lands
of Thasos became unfruitful and the Thasians were advised by the Delphic
oracle to bring back their exiles. After doing this, the dearth kept up
and they were again advised in these words: "But you have forgotten your
great Theagenes." They did not know how to recover the statue, but fortu-
nately it was caught in a fisherman's net and towed to shore, and set up
in its old place in the agora, where Pausanias says it was sacrificed to in
his day as to a god. VI, ii, 9. Similar examples occur in Greek literature,
but this appears to be the only case in which an actual tril and condemna-
tion is recorded: e. g. the statue of another Olympic victor, Euthymus of
Locri (who won in boxing in Ols. 74-77. Paus., VI, 6. 4: Hyde, op. cit. 56:
F6rster, op. cit., nos. 185, 195, 207), had a similar history to' that of
Theagenes: Eusebius, Praep. evang., V, 34, P. 232 b, d. Another'example
is that of the bronze ox of Philesius at Olympia, set up as a votive offering
of the Corcyraeans. which caused the death of a small boy playing beneath
it. who. on suddenly raising his head, broke it against the belly of the ox:
Pausanias, V. 27, 9-To: ef. X, 9, 3.
' The Prosecution of Lifeless Thin.gs and Animals in Greek Law;
American Journal of Philology, XXXVIII (19T7), 2, No. iso, pP. 52-175, and
3, No. iIi, pp. 285-303..
348 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

For the pre-Draconian period Aristotle states that the Areopagus

appointed all officers, administered the government and guarded
the laws, having the power to fine or punish all who violated
0
the laws as well as those who were convicted of immorality.13
The remnants of political power which continued to cling to it
many centuries later, after its importance had waned, is cor-
roborative of this evidence, as is also the fact that the name
"Council" was retained, which shows that the later body was
formerly a State Council. The Areopagites were appointed from
the archons by birth and wealth,' and this method of .election
endured to the beginning of the fifth century, when it was re-
placed by lot. 5 2- Under Draco it remained "the watcher of the

' Constit., 3,6: ef. 8, 2: Isocrates, 7, 46: Androtion and Philochorus

(Muller, Frag,. Hist. Graec., I, p. 387, 17 and p. 394, 60). Curiously
neither Herodotus nor Thucydides say anything of its powers; however,
they had no special reason for mentioning it, and before the fourth
century B. C. there was no interest in the constitutional antiquities of
the Greek states. In a passage which bears on the early constitution of
Athens, Thucydides, 1, 126, says that during the Cylonian insurrection (end
of the sixth century B. C.), the nine archons were entrusted by the
Athenians with absolute power to deal with the conspiracy at discretion;
this however, is not out of harmony with Aristotle's view of the early
supremacy of the Council, 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; see Botsford, art.
Areopagus, in the Encyclopedia Britannica (ifth ed.), II, p. 453 and n. 1.
The Eumenides of Aeschylus, written in the early part of the fifth century
*B. C., is a glorification of the Areopagus, especially of its judicial importance.
'Aristotle, Constit., 3, 6 (speaking of the pre-Draconian age): such
a statement destroys the older views of the connection of the cphetai with
the Areopagus: cf. e. g. the view of Lange, Abhandlungen der Sachs,
Gesellsch. der Wissenschaften, VII, i99 sq.
m Despite Aristotle's statement, Constlt., 8, 1, that Solon chose archons
by lot from nominees chosen by the tribes, each choosing ten. This appears
to be a mistake, for Aristotle merely inferred that the method in vogue in
his day was the same as in Solon's day. In another passage, 22, 5, he
corrects it by saying that the nine archons were appointed by lot by the
tribes from Soo nominees chosen by the demes, and that this -was the
method in the Archonship of Telesinus (487-486 B. C.). It was this
change which made the archons of little influence, for their old powers as
chief magistrates thus went over to the generals. For the sake of clearness,
it should be added that the archonship was founded about 7"o0 B. C., and
was followed by the appointment of a poleinarch; thus Aristotle, Consit.,
3, 2-3. says the most important three officials of Athens before Draco were
the King (archon), polernarch (in charge of war affairs), and the archon.
He gives five stages in passing from royalty to aristocracy. Thucydides,
1, 126. speaks of the nine archons collectively, but the responsibility 'in
regard to Cylon's conspiracy was taken by one. Aristotle says that down
to Solon's day the archons had no official residence, but later used the
Thesmotheteum, while the king used the Boucoleum, the archon the Pry-
 THE HOMICIDE COURTS OF ANCIENT ATHENS

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

pagus. 6" The first direct evidence that the judicial competence
of the Areopagus goes back even to Draco's day is late.16 Two
late accounts even state that Solon founded this competence.
Thus Pollux, a writer of the second century A. D., 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. 162 Similarly Plutarch records that "the general state-
ment is that Solon instituted the Areopagus." 183 He adds, how-
ever, 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, he is doubtful of it, since Solon's
thirteenth table-the amnesty law already discussed-seems to
show that the Areopagus already existed before his day. The
discovery of Aristotle's Constitution of the Athenians in 1890 164
has unfortunately added but little to settling this question.
It has given us much additional knowledge about the political
and administrative history of Athens, but it tells us little of the'
judicial history back of Aristotle's day.""3 In one place, how-

" Lipsius, op. cit., p. 14, believes all murder trials in early days were-
held on the hill, though not before the Council. 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), still this cannot be proven. Lipsius,
therefore, carefully distinguishes between the hill called Areopagus (as a
Gerichtssttte), and the later Court of the Areopagus (Gerichtshof).
'"Demosthenes is the first to explicitly affirm this: 20, 157-158: law,
23, 22: cf. 23, 51 and 66. The word dikazein in the law, 23, 22, and else-
where, shows a late redaction.
11VIII, 125 (Bekker's edition, 1846).
2
Solon, 19.
'It was found in Egypt at the end of the year: the editio princepi is
that of Kenyon, Jan., i891. The best annotated edition is that of Sandys,
1912 (2d Ed.) ; the best translation is that of Kenyon, r912 (an earlier one
being by E. Poste, 89i). Throughout this paper I have used Kenyon's
edition of 19o3, Aristotelis Res Publica Atheniensium (Berlin). For bibli-
ography, see Hellenic Civilization (915), P. 43. Internal evidence shows
that the work was compiled between 328-325 B. C., some years after
the Politics, and shortly after Androtiori's Atthis-Aristotle's chief source:
see Schwartz, Androtion, in Pauly-Wissowa, op. cit., I, 2173, 5: Keil, Die
Solonische Verfassung (1892). pp. Tgo sq.: and on Philochorus, see espe-
cially J. H. Wright, Did Philochorus quote the Athenaitn Politeia as Aris-
totle's? In American Journal of Philol., XII (189), pp. 31o-318. On the
Atthid writers in general, see Schwartz, art. Atthis, Pauly-Wissowa, 11,
218o-2i8.3; Wilarnowitz, Aristoteles und Athen, 1, 26o-29: Busolt, Griech.
Gesch., II, 7 sq.
' ConstL., 57, 3-4.
 TIE HOMICIDE COURTS OF ANCIENT ATHENS

ever, he says the tyrants (56o-1o B. C.) left to the Areopagus

its murder jurisdiction, which statement would seem to bring
the date of its judicial functions back at least to Solon (594
B. C.).'"' On the basis chiefly of the statements quoted from
Pollux and Plutarcl, the view first propounded in 1833 by
Sch6mann 107 was long accepted by writers oil Greek law, that
all murder trials before Draco's day were in the jurisdiction of
the Areopagites, but under his legislation were transferred to
the board of judges called Ephetai instituted by him, and that
later Solon gave back to the Areopagus the most important
part, cases of premeditated murder. However, not all writers
today accept this statement of the case. 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 (.founded by Draco) and gave it over to the new Council
of the Areopagus.'" 8 The main contention of Sch6mann, how-
over, has recently found a vigorous defender in Gustav Gilbert,
one of the foremost experts on Greek legal antiquities.'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. In other words Draco
limited the powers of the Areopagus, which before him, and again
after Solon, had jurisdiction in murder cases. Under Draco,
then, the Areopagus, became, as Aristotle says, merely the

Constlt., 16, 8. He says that the tyrant Peisistratus himself, being

haled before the Areopagus for murder, presented himself. Demosth., 23,
66, says: "This tribunal [the Areopagus] neither despot nor.oligarchy nor
democracy has ventured to deprive of its jurisdiction, in murder."
The statement in the Politics, II, 9, 2, p. 1374a, which makes the Areopagus
antedate Solon, probably only refers to its political activity, as do also
certain statements in the Constitution, 3, 5; 4, 4; 8, 4; Lipsius, off. cit., I,
p. r3, n. 49, says 8, 4 has nothing to do with murder competence.
"'"In his De Arcopaga et Ephetis (Opuscula academica, I, p. sgo'sq.):
it was later modified by the author in Jahrbuch ffr Philologie, CXI (1875),
P. 157.
' Op. cit., 1, p. 2o: on page 22 lie characterizes Sch~mapn's view-as
improbable and without grounds for the pre-Solonian murder jurisdiction
of the Areopagus.
'"Jahrbuch fur Phiol., Suppl. Bd., 23: see especially -pages 485 sq.
and Si6 sq. (whole article, pp. 476-307): cf. his Handbuch, 1, 135.
352 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

"watcher of the laws" and the regulator of officials.17 0 He is

opposed, therefore, to the Draconian origin of the law about
premeditated murder, which, as he points out, is omitted in
Draco's tablet and is vouched for expressly for the first time by
Demosthenes in the fourth century B. C.; he believes that pre-
meditated wounding, poisoning and arson were first distinguished
as special cases after Draco's legislation and then given over
to the Areopagus. He further believes that Draco took over the
whole criminal procedure, which he assumes was in the hands
of the Areopagus before his day, and gave it to the court of the
Ephetai, which he founded, and that it was given back to the
Areopagus first under Solon. J. 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, on which Gilbert partly
relied, proves nothing, since Aristotle, probably intentionally,
speaks of its competence only so far as his authorities come into
account. It may, however, 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, 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. Miller and most
writers, however, believe that Pollux was mistaken, since in one
respect at least we know his statement is incorrect; for he says
that the Ephetai sat in all five courts, though we now know
they did not sit in one-that of the Prytaneum. It is possible
that the Areopagites in their criminal jurisdiction were called
Ephetai until after Draco's legislation,17 s for this assumption.
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. It is also possible to explain
"'See ConstLt.,*4, 4 (for Draco): 3, 6 (before Draco): 8, 4 (after
Solon).
" See the article on Drakon, Pauly-Wissowa. op. cit., p. i652.
'"Jahrbuch far Philologie, Suppl. Bd., XXIV, p. 275.
'Cf. Philochorus, Fragm. 58 (= Mfiller, Fragm. Hist. Graec. 394).
 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.1 74 Similarly it explains Plutarch's statement that
Solon instituted the Areopagus, a notion partly due to the desire
of later writers to ascribe to Solon the formulation of a com-
plete constitution.' 7 5 However, 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, or to determine with any
degree of certainty the time at which the ancient Council of the
Areopagus received its judicial functions, though it seems prob-
able that these functions came to it long before the time of Draco.
The history of the Areopagus after Solon is briefly told. As
we saw, Aristotle says it retained its murder functions under
the tyrants. After their expulsion, in the reforms of Cleisthenes
(5o8 B. C.), the Council seems to have received no abridgement
of these powers. After Cleisthenes, however, it slowly changed
its character through the annual admission of exarchons who had
held office under a popular regime. By 487 B. C. its powers
waned because of the introduction of the lot in the selection of
archons. In the year 462 B. C., the democratic leader Ephialtes,
in conjunction with Archestratus and Pericles, passed measures
by which nost of its administrative functions were given over
to the Council of Five Hundred, the Assembly and the popular
law courts."" It still retained jurisdiction over wilful mhurder
as well as over all cases in reference to the sacred olive trees.
From 462 B. C. to the end of the Peloponnesian War (404) it
was of no consequence politically, as the class of citizens known"
as Zeugitae were admitted in 457 and the lot became the method
of electing archons. After the appointment of the Thirty Tyrants
the law of Ephialtes was repealed and the Areopagus was again

""Cf.Botsford, Encycl. Brif., uxth Fd., II, p. 453.

ThCf. the words of Gilbert Murray, in his Ancient Greek Literature,
p. 13: "When a law was once passed at Athens it tended to become at
once the property of Solon, the great 'nomothetes'."
See Aristotle, Consfit., 25, 2: 27, 1: 35, 2: Plutarch, Pericles, 9.
Cases of impiety and the supervision of officials and the censorship of
the morals of the citizens were then transferred; see Wilamowitz. Aris-
toieles and Athens, II, i86-T97; Busolt, Greich. Geschich. (2nd ed.), III, 269-
354 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

made guardian of the laws when the democracy was restored.'"

From then to the end of Greek history it retained its reputation
for ability."' . Even in the second century of our era it re-
mained a murder court. 17 9 Its activity seems to have ended
about 40o A. D. 180
Cases brought before the Palladium, Delphinium and
Phreatto were tried, under the presidency of the King-archon,"1 '
before a jury of men called Ephetai.15s2 This court of the
Ephetai consisted of fifty-one men,18 3 all of whom were over
fifty years old and of blameless life 1s4 and probably of eupa-
trid, or noble birth.s" The origin of the court, as already dis-

Aristotle, Constit., 35, 2. In 403 B. C., by a decree of Tisamenus (cf.

Andocides, 1, 84), it received the guardianship of the constitution.
"'Cf. Isocrates, VII: Demosth., 23, 65: Valerius. Maximus, 8, 1;
Aulus Gellius, 12, 7: Lucian, Bis accusatus, JV, 12, 14: etc. Under Roman
sway it led Athens: cf. Cicero, De natura decorum, II, 74. Then it re-
ceived new prerogatives-the trial of forgers and tamperers of the standard
measures, the care of education, religion, etc.; cf. Tacitus, Annales, II, 55:
Plutarch, Cicero, 24; Acts of the Apostles, XVII, i9.
Pausanias, I, 28, 5.
Thoedoret, Curat., IX, Z
luAristotle, Constit., 57, 4, says the king presided crowned; in the
Draconian tablet the plural (kings) is used, which may refer to the
yearly elected king-archons: so Lipsius, op. cit., 1; 17-18. Wilamowitz,
Aristoteles und Athen, I, 94, believes the plural includes the king and the
tribe-kings together, against which explanation see Gilbert: Jahrbuch ffir
Philologie, Suppl. Bd., 23, 489, n. 2.
" The Draconian tablet is warrant for cases tried at the Palladium;
lines 1o sq. (and four other places): Aristotle, Constit., 57, 4,. says judges
chosen by lot (the word Ephetai, if used, was dropped from the man-
uscript), sit in judgment in the three courts. Cf. Harpocration, Lexicon,
s. v. ephetai, who wrongly includes the Prytaneum in their jurisdiction: ef.
Suidas, Photius, etc. -
"4The number is given in the Draconian tablet, line i9; Demosth.,
43, 57; Pollux, VIII, 125: etc. It is wrongly given as 50 by Timaeus,
Lex. Platon. s. v. and by the scholiast on Demosth., 23, 37. The meaning
.of the number is unknown: Busolt, Griech. Stoats- und Rechtsalt., p.. 143,
assumes it had to do with the three courts at which they sat, seventeen at
each. But the Draconian iablet assumes they acted collectively. Busolt, again,
Griech. Gesch., 2nd ed., II, 179, n. i, suggests the number may refer to
three classes of citizens. Gilbert, Handbuch, 1, 136, n. r (following Sch-
mann. Opuscula Acad., I, 196),. believes the number comes from 12 men
from each tribe together with three legal interpreters; Lipsius, op. cit., 1, i8,
explains the uneven number as including the king-archon: in n. 61 he says
it is also possible that the uneven number was appointed- to avoid'a tie.
Etymol. Magn: Photius; Suidas, s. v. ephetai: Bekker, Anecd. gr., I,
i88 30.
' Pollux, VIII, 125; cf. Demosth., 43, 57; Aristotle, Constit., 3, 1 (Of
Draco's officials). This is Gilbert's explanation of the word arislindgn;
Handbuch, 136, n. i; cf. Aristotle, Politics, VIII, 45, 1.
 THlE HOMICIDE COURTS OF ANCIENT ATHENS

cussed, is doubtful, though both PoIllux and Timaeus assert

Draco founded it.1s Nothing as to its age can be deduced from
the myths of its origin 187 or its possible etymology.18 8 Philippi
was the first to throw doubt on the statement of Pollu that
Draco instituted the Ephetai, by showing that he probably made
the mistake by a wrong reading of a passage on the Draconian
laws in Demosthenes.' 8 9 Recently Philippi's arguments have
been attacked by Gilbert, who as already mentioned, maintains
that Pollux' statement that Draco founded the court of the
Ephetai is reliable.lt)0 Whoever does not follow Gilbert's rea-
soning, must leave the origin of the court of the Ephetai unde-
termined. But if the character of the Draconian code is rightly
looked upon as in essence a codification of customary law long
"Pollux, rII, 125: Timaeus, Lex. Platon., 127.
'" See Pausanias, I, 28, 8-9 (the account being derived from Clito-
demus, according to Suidas, Lexicon, s. v. epi Palladioi): a slightly differ-
ent version of the myth is given by Pollux, VIII, xx8 and the Schol. on
Aeschines, 2, 87. Cf. Gilbert, Jahrbuch fur Philologie, SuppL Bd., 23,
497 sq.
' The ancients derived the word from ephiesthai ("to appeal"): e. g.
Pollux, VIII, r25 (followed by C. F. Herrmann, De Dracone legumlatore
[1851], pp. 15 sq.: rejected by Lipsius, op. cit., p. 15, n. 53). It is more
probable that it comes from the same verb in the sense of "to command,"
and so is connected with ephetmW and ephetas (= commander, in Aeschylus
Persae, 79; cf. Wilamowitz, Philolog. Untersuch., I, go, n. 5). The idea ol
command at first would have no legal coloring, but later the term would-
befit a judge's office of giving orders and information (- "Anweiser des
Rechts, Lipsius, p. i5: cf. Sch6mann, Do Areopapo at ephatis, p. 7; Gilbert,
Handbuch, I, 137, n. x: etc). Another derivation is given by L. Lange,
De ephetarurn Atheniensium nomine (1874), PP. 13-14; cf. Busolt, Griech.
Gesch., and ed., II, 234, n. I.
"Law 43, 57-reading toutois for toutous-d'oi pentekonta kai heis
aristindin haireisthan. The statement in Timaeus can be explained from
the same source: Sch~mann, Jahrb. ffir Philologie (x875), p. i53, believes
this explanation of Philippi is possible but unnecessary. See Philippi,
N. Jahrb. ffir Class. Philol., CV (1872), pp. 578, and especially 6o4 sq.:
cf. his Arcopag und Epheten (1814), pp. 139 sq. and 2D3 sq. 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. He was followed by Lange, Die Epheten und dcr Areo-
pag, p. 3 sq.: by Wachsmuth, Die Stadt A then, I. 479, I: Wicklein, Sit-
zungsberichte der bayr. akad. (1873), 5-6. J. Miller, Pauly-Wissowa, op.
cit., V. 2, 2825 (art. Ephetai), says Philippi's argument "ist zum mindestens
sehr wahrscheinlich."
. Handbuch, I, 136, n. I: he characterizes Philippi's reasoning as
"ringlich, abet nicht notwendig": cf. his article in Jahrbuch ffir Philol.,
Suppl. Bd.. XXIII, 493 sq.: he followed Sch~mann in the first edition of
his Handbuch, but later changed his view on the basis of statements in
Aristotle's Constitution. Busolt also believes Draco founded the court,
Staats- und Rechtsalt., I, p. 273.
356 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

in the making, as most scholars today believe, 1 1 then the state-

ments of late writers, like Pollux, that Draco fotinded the Ephe-
tai, lose. their interest. In any case it is probable, as we have
shown, that in the oldest times a court on the Areopagus had
charge of all murder cases, both premeditated and unpremedi-
tated. 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, or perhaps to limit its
functions, 92 cannot be stated with any degree of certainty. But
as degrees of guilt slowly grew and. began. to be definitely con-
ceived, cases of homicide would naturally.have been taken from
the Areopagus and tried by the later court of judges, the Ephetai,
who would sit, as the nature of the case demanded, in the dif-
ferent localities-at the Palladium, Delphinium and Phreatto.
The court of the Ephetai, whatever its origin, remained un-
changed in its composition and form at least down to 4o9-8 B. C.,.
as we conclude from its being mentioned in the Draconian re-
vision of that date. It appears, however, to have gradually lost
in reputation, as we learn from a statement of Pollux.19 3 A
change certainly took place soon after 408 B. C., for Isocrates,
in -a speech made shortly after 403-2 B. C., mentions 7oo
judges in a process before Ephetai.'" Consequently this change
took place somewhere between 408 and 402 B. C., and prob-
ably after the fall of the Thirty Tyrants in 404.195 By Aris-
totle's day, if not by the beginning of the fourth century B. C.,
E. g. Lipsius, 1, pp. 16-17; p. rg reads: "darf man ouch hier der
Annahmne sich cuneige dass Drakon nicht sowohl neues Recht geschafft alt
bereits bestehendes sanktlioniert hat," u. s. w. Gilbert's idea is different, as
we have seen, and he is followed by the authors- of the Recueil already men-
tioned.
So Wilamowitz, Arisloteles und Athen, II, i99; cf. Gilbert, Jahrbuch
far PhiloL, Suppl. Bd., XXIII, p. 492 sq.
'VIII, 125: Miller, Pauly-Wissowa, op. cit., V. 2, p. 2825, believes
this statement refers to the period before 409-408 B. C
18, 54. Demosthenes, 59, zo, names one of 5oo dicasts trying a
homicide case.
" Cf. Philippi, op. cit., 318 sq.: Keil, Solonische Verfassutnq, 1o6 .
on p. iso the latter connects this change with the psephisma of Patroc'leies
(ef. Andocides, I, 177), and he believes that the Ephetai were first removed
from the Delphinium: Gilbert, on the other hand, believes that they were
first removed from the Palladium about 400 B. C., and later from the,
Delphinium and Phreatto, being replaced in all these courts by Teliastic or
popular jurors. .
 THE HOMICIDE COURTS OF ANCIENT ATHENS

judges in these three courts were chosen by lot; whether-they

were still called Ephetai or Heliasts cannot be decided. 10 6 Thus
we may conclude that from Draco's day, if not earlier, the
Ephetai sat in the three courts under discussion. 1 7 Draco could
hardly have instituted the body; he probably, as noted above,
merely systematized the procedure, since the developmeiit of the
murder process over a long period of time needed clarification.
Slowly heliastic courts of democratic origin selected by lot and
not through influence arose and took over these functions.10 8
Lastly, let us briefly consider the age and management of
the fifth court, that at the Prytaneum. 199 Pausanias, in mention-
ing a similar court on the island of Thasos, says the Thasians
in their laws about lifeless things followed those of Draco in

"' Aristotle, Constit., 57, 4: dikazousi d' oi lachontes tault' ephetailJ. Here
the word for judges is missing in the manuscript of Aristotle; Kenyon
supplied the word Ephetai from the citation in Harpocration,. who, he
thought, copied Aristotle. Kaibel, however, here inserted the word andres
(men): see Stit und Text von Aristoteles' Athenai~n Politeia, 24o; Gilbert,
Jahrbuch fir Philologie, Suppl. Bd., XXIII, 424, n. 2, inserts dikastai or
heliastai (dicasts or heliasts). Lipsius, op. cit., , 130, n. 30, says the
missing word cannot be ephelai, as that is excluded by the word lachontes
("chosen by lot"), which points to popular jurymen (heliasts), despite
the opinion of Keil: op. Cit., p. 107 sq. I might add that Demosthenes, 23,
38 (cf. Law, '3, 37), says diagnask~n de tous ephetas, which lends support
to the idea that the judges, though elected by lot, i. e., heliastic jurymen,
. 'kept
still the old
On the name ephetai.
Ephetai, see Miller, Pauly-Wissowa, op. cit., V 2, pp. 2824-
2826; Lipsius, Jahresberichte, XV, 284 sq. (with bibliography5; Hermann-
Thumser, Griechlische Staafsaltertbmer, I, 2, 355 sq.; Busolt, 'Griechische
Staats- und Rechtsaltertilner, 2nd ed., pp. 273 sq., and Griech. Gesch., II,
234 sq.: Gilbert, Handbuch, I, 2nd ed., pp. 424 sq.
'" Of these the greatest was the Heliaea: Pausanias, 1, 8, 8: cf. Harpo-
cration, s. v. Heliaia. On the name see Wachsmuth, Die Stadt Athen, 2.
361 sq.: its location is disputed, but it probably sat on the south . slope of
the Acropolis: Milchhbfer, Baumeister's Denkmniler, I, p. 2oo' 4 Gilbert,
Handbuch, I, 438-439; or on the southwest slope, where the later Odeum
was: Curtius, Karten von Attika, Erl. Text., p. 56; or near the Agora;
Wachsmuth, Die Stadt Athen, II, p. 358 sq.: cf. Judeich, Jahr. far Philol.,
CXLI, p. 748. It is mentioned by many writers: Aristophanes,-Equites,
897 (cf. Schol. on 898 and on the Vespae, 88 and 772, and Schol. on Demosti,
24, 21 . The regular number of jurymen in the fifth century B. C..was
6ooo (Aristotle, Constlit.. 24, 3), elected by lot (27 ibid., 4), from citizens
over thirty (Pollux, VIII, 122). After Pericles day it was subdivided
into bodies of 5oo-with isoo reserves; each juryman was feed three obols
(Equites, 255): see Wachsmuth, op. cit., I1, pp. 358-365: Busolt, Gniech.
Staats- und Rechtsalt., 11, p. 275: Gilbert, Handbuch, I, 438-439.
2'For fuller particulars see the article by the author already noted in
Amer. Journ. Phit (1917), Vol. 38, no. 3,-PP. 285-286, and 290 sq. .
358 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

Athens. 20 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,
01 At this
which he says goes back to the age of Erechtheus.
festival in honor of Zeus Polieus a curious ritual took place, in
which barley mixed with wheat was placed on an altar and an
ox, which was kept for the purpose, approached the altar and
ate of the grain, whereupon a priest named "ox-murderer" slew
it and threw away the axe and fled as if -he were guilty of
homicide. The citizens, as if they did not know who did this
deed, brought the axe to trial..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,
the peculiar features of whose ritual must be sought rather in
2-* 4
some form of totemism or allied primitive fact, while the
trials of animals surely go back to an animistic origin. What-
ever the .date of the founding of the other Athenian murder
courts, whether they go back only to the legislation of Draco
or earlier, we can be sure that the ceremonial trials held at the
Prytaneum must have existed from remote times, for the .ideas
underlying them are based on the very primitive notion that
things and animals are responsible agents. Such animistic notions
of nature belong to the infancy of races as well as of individuals.
It is in no wise strange that a people, who saw something divine
in every fountain, river and tree, should have endowed all com-
mon things with life and animals with responsible intelligence.
2VI, ii, 6: Siniilarly the Schol. on Aeschylus, Septem, i79, says the
court was Dracohian in origin.
20I, 28, o.
'"For the ritual, see Pausanias, I, 24, 4: Porphyry, De Abstinentia, II,
3o (taken almost verbatim from a lost work of Theophrastus, reconstructed
by J. Bernays under the title Theophrastos' Schrift iber Fr5mMugkeit,
Berlin, x866); cf. Aelian, Var. Hist., VIII, 3.
In the Amer. Yourn. Philol., 1917, Vol. 38, no. 2, pp. 152-167, and
especially no. 3, P. 298.
'On the subject, see A. Mommsen, Feste der Stadt Alhen in Alterium
(1898), pp. 312 sq.; cf. his Heorfologie (1864),. PP. 449-454; Mannhart,
Mythologische Forschungen, pp. 58 sq.: Botticher, Pl-lologus, Suppl. Bd., III
(1878), PP. 35r sq.: cf. Philologus, XXII, pp. 262 sq.: Robertson Smith,
Religion of the Senzites, 2nd ed., pp. 304 sq.: Frazer, The Golden Bough,
2nd ed., pp. -98 sq.; Farnell, Cults of the Greek States, I, App. to Chap.
IV, pp. 88 sq.
 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. It
is only when we understand the conservative spirit of Greek
religion and ritual that we see how such ideas could be retained.
We know similar beliefs are characteristic not only of primitive
peoples today, but leave their traces among those most civilized.
The numerous prosecutions of animals before state and eccles-
iastical courts of Europe recorded from the ninth to the twentieth
centuries, 2 5 show to what extent the idea of the moral respon-
sibility of animals may develop. The laws of deodand in Eng-
land, whereby personal chattels, such as carts and wheels, which
had caused the death of a man, were "forfeited to God, that is
to the King, God's lieutenant on earth, to be distributed in works
of charity for the appeasing of God's wrath," 20 which laws
were not repealed until Victoria's reign,2 0 7 show how far ani-
mistic notions may survive among a highly cultured modern
people.
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, i. e., the appeasing of the Erinys or
avenging spirit of the dead man.2 8 If this were not done and
every attempt made to bring the murderer to justice, caamity
was sure to befall the community. 200 In the last analysis, then,
it resolves itself into nothing less than the lex talionis, the oldest
and deepest rooted in human nature of all laws; axiomatic in

See E. P. Evans, The Criininal Prosecution and Capital Punishment

of Animals, i9o6: W. W. Hyde, The Prosecution of Animals and Lifeless
Things, in the Middle Ages and Modern Times, 64 UNiv. op PA. LAW REv.
6g 5s. (May zx16).
See Cope: Third Part of the Institutes of the Laws of England
(168o), p. 57; cf. Blackstone, Commentary on the Laws of England, Bk.
I, Chap. &
I" In the year 1846: see Stephen, History of the Criminal Law of
England, I1, 78: Pollock and Maitland, History of English Law Before the
Time of Edward I, II, p. 413: etc.
"The Mediaeval Church taught the same doctrine, merely substi-
tuting the daemons of Christian theology for the Furies of Mythology.
. "On the Greek idea of national defilement and calamity,, see Anti-
phon, First Tetralogy. A. 'to: and cf. Second Tetralogy, r 6: Aeschylus,
Eumenides, 8is: Sophocles, Oed. Tyr., 25 and iol...
360 UNIVERSITY OF PENNSYLVANIA LAW REVIEW.

primitive communities and lingering among those most advanced.

Aeschylus vindicated for the Greeks Heaven's way with mortals
by his doctrifie that the law of "Righteousness" was everywhere.
If a man suffers, it is merely the divine Nemesis on sin: if it is
difficult to see why this man or that suffers, or suffers beyond
the merit of his offence, you must investigate his family history
and then you will be sure to find a commensurate sin somewhere
there. Sophocles, also, with his milder view of Fate, had the
same belief, though he treated Nemesis as a less prominent
agency. Nowhere is the Greek law of "blood for blood" more
clearly stated than in a passage of Aeschylus' Choephorae, in
which Orestes says:
"Just meed may the unjust obtain!
Earth, and ye powers of Hades, hear my prayer."

to which the chorus answers:

"For law it is when on the plain 210
Blood hath been shed, new blood must fall."

Inwoven with this retributive notion was the Greek idea of

personifying inanimate objects. 2 "1 It was the action of the law
of reprisal in the case of both animals and things. The animal
or thing must suffer because its act had aroused indignation and
it was held to be responsible. Westermarck has shown that
among nearly all the Aryan nations of ancient Europe, not only
among the Greeks, but among the Romans, Teutons, Celts and
Slavs, an animal which did an injury was given up to the injured
party or his family. Here there was no trial, but it is incon-
ceivable that the animal was given up as compensation; it really
was given over for retaliation, so that the victim or his kin
might be revenged. 212 Thus.Thonissen was wrong in explain-
ing the Prytaneum trials as an attempt to revive in the people

2 Lines 398 sq. (Swanwick's Translation). Greek literature has many

examples of this sentiment: e. g., Xenophon, Anabasis, I, 9,ux.
mE.g. the "unforgetable axe of bronze," in Sophocles' Electra, 484
sq.: cf. the Trachiniae, 856-859.
Origin and Development of Moral Ideas (i9o6-r9o8), I, p. 256 (many
references).
 THE HOMICIDE COURTS OF.,ACIENT ATHENS

a sentiment for justice, since through sad experience they had

come to know right only as might. 213
As for the management of the court of the Prytaneum,
the question so long discussed as to whether the fifty-one Ephetai
had charge of it, 2"14 and the discrepancy in two statements of
Pollux, who in one place (VIII, 9o) says the King-archon, in
another (VIII, 120) the tribe-kings (phylo-basilcis) were in
charge, have been settled by an authoritative statement in Aris-
totle's Constitution to the effect that both king and tribe-kings
had charge.215 Thus, though the Ephetai, in charge of the courts
at the Palladium, the Delphinium and Phreatto, were in course
of time replaced by heliastic jurymen appointed by lot, in all
probability the court at the Prytaneum, owing to the fact that its
jurisdicti6n was limited to rare cases of a ceremonial and relig-
ious character, never had anything to do with the Ephctai nor
their heliastic successors.2 ' 6 The King-archon, then, true to his
inheritance, - 7 had the presidency here as in all the other homi-

" See his Le droit pinal de la rpubfique Atheuienne (1875), p. 414.

The same mistaken explanation has been offered for the trials of animals
in the Middle Ages: see the" author's article in 64 UNIV. OF PA. LAW REv.
696, already .noted, for a r6sum6 of different theories presented to explain
these trials in the Middle Ages.
= As Pollux in one passage says: VIII, i2o: cf. Harpocration, s. v.
ephetai. The mistake probably grew out of the fact that the source of
both these writers, Demosthenes (23, 65-77), juxtaposed the five murder
courts; see Busolt, Griech. Gesch., 2nd ed., II, 234, n. 2.
='57, 4. Lipsius was the first to point out that the king and tribe-
kings acted together; Sitzungsberichte der sdchs. Gesellschaft der WUr-
sensch. Philol. Histor-Classe (x89i), pp. 41-52. For the older discussion of
the management, see Philippi, Der Areopag und die Ephelen, p. x8 sq.
"'Cf. Miller, in Pauly-Wissowa, op. cit., V. 2, p. 1652; Lipsius,
however, op. cit., I, pp. 2o-2i, believes that down to Solon's day the
Ephetai sat in all the homicide courts; and on p. 27, n. 85 (cf. P. 131), he
says they may have sat in the Prytaneum even down to Aristotle's day,
when they may have been replaced by the king and tribe-kings. This is
directly at variance with Aristotle's statement and the probabilities of
the case.
'After the passing of royalty, the royal name was retained as king-
archon (archtin basileus), since on him devolved the sacred rights connected
with the old name of king; he was in charge of the Eleusinian mysteries, the
Lenaea, Anthesteria, sacrifices, games, etc.: see Aristotle, Constit., 57, x:
Pollux, VIII, go: cf. Demosth., 35, 48 and 399. The eponymous archon, on
the other hand, was the guardian of orphans, widows, heiresses, etc.. a sort
of Lord Chancellor: see Demosth., 35, 48; law, 43, 75: Aristotle, Constit.,
56, 6.
362 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
1
cide courts. -r1 In early days doubtless the court at the Prytaneum
was important; but gradually it lost its influence. In primitive
days, when men held animistic notions of nature, the trials of
things must have been common. They were retained because
of their ceremonial and religious character to the end of antiquity.
The four Ionic gentile tribes of Attica, dating from the remotest
antiquity, - 19 had gradually lost all political significance and their
chiefs, i. e., kings, finally retained only religious functions. Sit-
ting in judgment at these trials was probably their last function
historically.
Walter Woodburn Hyde.
The College,
University of Pennsylvania.

"'Aristotle, Constlit., 57, 2: Harpocration, Suidas, s. v. h0geononia

dikasttrion; Bekker, Aneed. gr., 1, 31o, 6 sq.: etc.
"The population of Attica was originally divided into four tribes,
Geleontes, Hopletes, Aegicores and Argades, each being presided over by
its king. Aristotle. Constit., 41, 2, in enumerating eleven changes in the
Athenian Constitution before his day, says the people in the days of Ion
were divided into tribes and cho:,e kings. The origin and functions of
these kings are little known: they probably from the first enjoyed both
religious and legal functions, especially the supervision of sacrifices: cf.
Pollux, VIII, ill: Aristophanes; Fragm., 349: Busolt, Griech. Staats- und
Rechtsall., p. 273.