POINE

A STUDY IN ANCIENT
GREEK BLOOD-VENGEANCE

By
HUBERT J. TRESTON, M.A.
PROFESSOR OF ANCIENT CLASSICS IN
UNIVERSITY COLLEGE,
CORK

Rien de ce qu’ont pensé les Hellènes n’est indifférent
à l’histoire de la civilisation.—Glotz

LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON, E.C. 4
NEW YORK, TORONTO
BOMBAY, CALCUTTA AND MADRAS
1923

Made in Great Britain

PREFACE

It has not been my purpose in writing this book to occupy myself in expanding or discussing some articles written on Greek criminal law in a learned dictionary of antiquities. While it is true that ancient law, however crude and obscure its expression, is not so repulsive, so inhumanly technical as medieval or modern law, and while it is also true that a writer on Greek blood-vengeance cannot avoid an occasional reference to legal formulae and technique, nevertheless I feel that a merely legal treatise would not advance the prospects of Greek education or our knowledge of Greek civilisation, for the simple reason that no one but a professed student of ancient law could be induced to read it!

This work is intended rather as a supplement to the study of Greek literature, history, and archaeology. The first part contains an analysis of important elements of Homeric civilisation, an account of the different strata in the Homeric society and of the religious beliefs and practices of the Homeric Greeks. This section owes much to the pioneer work of Ridgeway and of Leaf; it carries, so to speak, into remote corners and crevices the light which their genius has thrown on the general nature and structure of early Greek society.

The second part is concerned with the Middle Age of Hellenism (1000 B.C.-600 B.C.): it is an attempt to explain the social and religious evolution of the Hellenes and to interpret the homicide laws of the historical period in the light of that evolution. This section is inevitably the most ‘legal’ portion of the work, but an effort is made, even at the cost of what might appear excessive repetition, to avoid an unduly technical exposition, and the literary aspect of the subject is constantly emphasised.

The third part is an enquiry into the origin and development of the legends which are found in Attic tragedy. These legends are permeated with references to homicide, and I have attempted to render less obscure and difficult the problems of blood-vengeance which they contain. As such an attempt would be utterly impossible without a previous discussion of the homicide laws of Greece, the account of these laws which I have given in the second part of the work should be regarded as a necessary preliminary to the subsequent analysis of these legends.

The extent of my indebtedness to modern writers on this and kindred subjects is sufficiently indicated in the footnotes and the second section of the Index. I must, however, express, in addition, my obligations to Professor Goligher, of Trinity College, Dublin, for his kind encouragement, assistance, and advice.

My best thanks are due to my friend and colleague, Mr. W. H. Porter, for his generous co-operation in reading and correcting the proofs of this work and for his valuable criticisms and suggestions. In particular, I owe to him the alteration which I have adopted, on p. 195, in connection with the restored Draconian inscription.

I should like also to record my appreciation of the accuracy and efficiency of Messrs. Spottiswoode, Ballantyne & Co.’s Reader.

H. J. T.

Cork, June 1923.

CONTENTS

POINE

BOOK I
POINE IN HOMER

CHAPTER I
INTRODUCTION

Section I.: The general principles of blood-vengeance, analysed and illustrated: customs of modern races in the Balkans, in the Mediterranean area, and in South America: customs of the ancient Germans, the Anglo-Saxons, and the Welsh: Burgundian, Norman, Israelite systems.

Section II.: Homeric Society; Views of Loaf and Ridgeway: feudal militarism and tribalism.

Section I

If we examine the various methods of blood-vengeance which have been adopted by different peoples throughout the ages, we shall find that they may be divided broadly into four groups or categories. Amongst rude and savage races there exists or has existed a system of vengeance which we may describe as a barbarous and unrestricted vendetta. In the absence of any social machinery for the determination of blood-guilt, or for the estimation of its varying degrees, a single deed of blood provokes an endless series of retaliations: a hideous orgy of revenge rages through the land, an orgy which no one may escape; for old men and women and children perish, whether one by one, or in a general massacre. The vengeance is at once collective and hereditary. It strikes at the neighbours and at the most distant relatives of the murderer: it strikes, too, at the children that are born when the murderer has been gathered to his fathers. It ends only when there is hardly anyone left to kill, or when a paltry sum of money is offered to placate a glutted thirst for blood. It is a strange fact that such a system should have survived up to comparatively recent times[1] in the Balkan States. It is generally but, as we hope to show, erroneously maintained that such a system prevailed amongst the earliest inhabitants of Greece about whom we have any certain knowledge.

A second mode of vengeance we may describe as a personal restricted vendetta. It is distinguished from the mode which we have just mentioned by the absence of collective or hereditary punishment. It refuses to visit the sins of the father upon his children or upon his neighbours. The right to avenge remains with the relatives of the slain. They may lie in wait for the slayer or, if he flees, they may dog his footsteps over land and sea. But they dare not strike the innocent for the guilty. There is some power, whether of military autocracy, or of public opinion, which prescribes the bounds of their avenging. The system does not generally include a regular tribunal for the trial of homicide, whether because there is little difficulty, in certain social groups, in determining the identity of the murderer: or because some primitive method of evidence, such as the ordeal of medieval Europe, takes precedence of human witnesses: or because a recourse to arbitration, in the private domain of a king or of a squire, is too insignificant a procedure to have found its way into any historical records. It is such a system that seems to have prevailed in Serbia up to very recent times. It is such a system that, we hope to show, existed amongst the Achaean caste in Homeric Greece.

A third, and for our present purpose the most important, mode of vengeance is that which we may describe as the ‘tribal wergeld’ mode. It consists essentially of a compensation, in the form of goods or valuables, which is paid by the relatives of the slayer to the relatives of the slain. It differs from our first-mentioned mode of vengeance in the fact that satisfaction is paid in ‘money,’ not in blood, and in the fact that payment is fixed by custom or law and is not of an indefinite duration. It differs from the second mode in this, that the ideal penalty is not death, but compensation or exile, and that the punishment is collective rather than personal. The system is found only in tribal communities, where the life of the individual is subordinated to that of the group, and where property is frequently possessed and enjoyed in common. It is, of course, true that all tribal societies do not adopt this system, whether because temperament and environment foster a blood-lust that money cannot appease, or because a religious law has been superimposed upon the clans, or because a feudal or highly centralised government has become strong enough to resist the demands of the clansmen for compensation. But, apart from these special circumstances, tribal communities tend to adopt the ‘wergeld’ system of vengeance. We have the most ample evidence[2] of its operation in pre-medieval Germany, and Wales, and Ireland and Scotland, amongst the Anglo-Saxons, the Franks, the Wisigoths and the Vikings. We can see in ancient Israel an instance of a land which has evolved beyond the wergeld stage. There came a time when a theocratic legislator was sufficiently powerful to attack the privileges of the clans, and to cry out, as with a divine voice, ‘Ye shall not take satisfaction for the life of a man that is guilty of blood.’[3] We hope to make it clear that it was this system which prevailed amongst the earliest inhabitants of Greek lands, who may, for convenience, be described as Pelasgians. Owing to the great number of the individuals who were liable to make or to receive compensation, and also because of the social organisation of the tribes, we are not surprised to find that a regular tribunal was frequently appealed to, and that a trial, concerned more often with the question of payment than with the question of guilt, was one of the most common events of interest in the life of Pelasgian tribesmen. No wonder is it then that the poet Homer gives a description of such a scene[4] and tells us that Hephaestus had engraved it on the famous Shield of Achilles. This is the earliest reference to a trial of any kind in all European literature.

Our fourth category of the modes of blood-vengeance is intended to comprise all the methods of punishing homicide which are characteristic of fully developed social organisms, whether in ancient or in modern times. Homicide, which was originally conceived as an outrage affecting only a family or clan, may come to be regarded as a crime against the body politic, as an insult to the majesty of the State, its laws, its gods, or its governors. Indeed, this latter conception usually becomes so vigorous that it obscures and ultimately extinguishes the former, at least in so far as that former conception concerns the claims of the relatives of the victim. In early English law the word murdrum[5] denoted a fine payable to the king if the murderer was not produced. In feudalism, the lord claimed a portion of the payment made by the relatives of the slayer. This was the honour-price, an atonement for the insult caused by a ‘breach of the peace.’ In historical[6] Athens wergeld was forbidden, but the property of a convicted murderer who went into perpetual exile was confiscated to the State. In ancient Israel wergeld was abolished when murder was conceived as a ‘sin’ against the God of the State, when it was believed that blood polluted the land.[7] In Greece, too, we hope to show that wergeld was abolished in the first instance by the religion of Apollo, and that the evolution of the State, if it did not assist in its abolition, at least ensured that the abolition should be permanent. Once murder becomes a sin against the gods, or a crime against the State, the day of private vengeance has passed: that of State trial, State imprisonment, State execution takes its place. The relatives may still assist, they may even be compelled to assist, in the punishment of homicide, but they have lost the right to material compensation.

We will now give a few illustrations of the actual operation of these modes of blood-vengeance. As the fourth or last-mentioned mode is found in all modern States, we need not here illustrate its operation, especially as we shall have to describe, at a later stage, the treatment of homicide in historical Athens.

As an example of the practice of unrestricted vendetta, we may cite the case of the Montenegrins.[8] This little people, up to quite recent years, practised a collective and hereditary vendetta, which continued from generation to generation, until the number of victims on both sides was equal, or until a blood-price of ten sequins was accepted by the feud-weary relatives of the original victim. Again, in Sardinia,[9] until the close of the eighteenth century, a collective hereditary feud followed a single act of murder, and hundreds of lives were lost in a single year. In Corsica,[10] in the eighteenth century, the vendetta-system caused the loss of a thousand lives each year: whole villages were depopulated: houses became fortresses where armed men lay in wait, hungry for vengeance, while the women tilled the fields. A similar barbarous blood-thirst was prevalent in Sicily,[11] in Calabria,[11] and in Albania,[12] up to quite recent times. The establishment of an improved system of government and the operation of disciplinary penalties have fortunately checked and must ultimately abolish so hideous a mode of vengeance. These peoples of the Mediterranean area are probably, as Ridgeway holds,[13] the racial descendants of the old Pelagasian race. For this, and for other reasons, there is a tendency to assume that the Pelasgians followed this system of blood-vendetta. But we hope to show that this view is probably incorrect, and that it is much more applicable to the Greece of post-Achaean days, that is, from 1000 B.C. to 750 B.C. than to the Greece of Achaean and pre-Achaean times.

As an illustration of the second mode of vengeance, we may perhaps cite the Serbians of recent times who adopted a restricted form of vendetta and who often allowed murder to remain unpunished.[14] The restricted system seems to have existed amongst the Araucanians[15] of South America, and amongst the Jivaros Indians,[16] but only when the identity of the murderer could be established. In this latter case we find the alternative operation of a more civilised with a more barbarous form of vengeance. But we must not assume that these forms coexist as alternatives everywhere. A French authority holds[17] that the essential motive of collective punishment was the production or identification of the murderer. ‘So long,’ he says,[17] ‘as the murderer is unknown, so long is the responsibility collective and diffused.’ We cannot accept this statement as an explanation of the origin of unrestricted vendetta. We admit that collective penalties of a minor kind would form a strong inducement for the discovery of the criminal. It was for this reason perhaps that an Anglo-Saxon law[18] levied a fine on the whole ‘hundred’ if the murderer was not produced. But it is one thing to bring pressure to bear on a district, whether by a fine, as in this case, or by an oath, as in the instance mentioned in Deuteronomy[19]; it is quite another thing to destroy a whole town or village if the murderer was unknown. We shall see[20] that the Homeric Achaeans often waited long for vengeance, and often allowed the homicide to go unpunished, rather than visit with unjust punishment the innocent relatives of the slayer. In this system there is no trace of collectivity. The relatives have not even to pay a sum of money. The flight of the slayer is not indeed accepted as a substitute for the normal penalty, which is death, but it postpones indefinitely, if not for ever, a vengeance which the slayer alone can suffer.

To illustrate the operation of the ‘tribal wergeld’ system, we naturally turn, in the first place, to the Germans of pre-Christian days. Tacitus says[21] of them: ‘It is an indispensable duty to adopt the private enmities of a father or a relative ... these, however, are not irreconcilable and perpetual. Even homicide is atoned for by a fixed number of cattle and sheep and the whole House accepts the satisfaction, to the benefit of the civic group.’ Tacitus is obviously astonished at this system of compensation for homicide. The Romans, like the Germans, were familiar with the organisation of the clan, and of the tribe, but Roman law, as far back as we can trace it, did not permit wergeld. In Rome,[22] from 450 B.C. onwards, the expiation of the insult which the homicide offered to the State and its gods had driven from view, and had therefore probably abolished, the material compensation of the clan. The chief detail of interest which Tacitus gives us is the collective acceptance of satisfaction by a whole House or Family. From other sources, which we shall presently discuss, we may infer that the House in this instance was a very large unit, including not merely the closer kindred which traced descent to a common living (or lately deceased) ancestor, but that wider group of kinsmen which is called the clan.

We note also, in Tacitus’ account, a reference to a fixed number of cattle and sheep. Who was it that fixed the number? Who was it that paid? To answer these questions we shall cite some details of Welsh wergeld payments which have been admirably collected and explained by Mr. F. Seebohm.[23]

In the Cymric codes, the normal wergeld was a payment of one hundred and twenty cows, but the number varied according to the rank of the slain. For the death of a chieftain the amount was one hundred and eighty cows: for the death of a stranger, from thirty to sixty cows.[24] Over and above the wergeld or galanas, there was payable an insult-price or saraad, consisting of six cows. This amount was always paid first, from the murderer’s own cattle. Within fourteen days of the murder, a meeting of the slayer’s clan or wider kindred was convened, at which the proportion of wergeld due from each family was determined. Usually the murderer’s family paid forty cows, or one-third of the total wergeld. Of this amount the murderer himself paid one-third, or about fourteen cows; his father and mother paid one-third, and his brothers and sisters one-third, the brothers paying twice as much as the sisters. The remaining portion of the wergeld, namely, eighty cows, was paid by the wider kindred. Relatives on the paternal side paid two-thirds, those on the maternal side, one-third. As the clan comprised very often a large number of people, the actual contribution of individual cousins of the murderer would have been rather small. The murderer himself paid, in saraad and galanas, a total forfeit of twenty cows. But if the murderer was poor, there was paid ‘spear-penny,’ which was one-ninth of the wergeld, but was collected from male kinsmen on the paternal side.

It was not necessary that these payments should all be made at the same time, or immediately. They were frequently made in fortnightly instalments. The system of receiving wergeld seems to have been parallel. It is probable that the cows paid by the murderer’s family went to the family of the victim: those paid by first cousins went to first cousins: those paid by paternal kindred went to paternal kindred: all being distributed in the last resort to individuals, if the clans involved had developed the principle of individual ownership at that particular period of time. It is clear from the Cymric codes that individual ownership was assumed as universally prevalent. But it is certain that such a condition is not a characteristic of all tribal communities. In the Salic law, which operated amongst the Germans from about A.D. 500 onwards, a distinction was made between the inheritance of ‘wergeld’ and that of the ‘allod’ or family-domain.[25] While the latter could only be inherited by a family group which did not extend beyond second cousins, a group which in Wales was called a ‘gwely,’ the wergeld was inherited by all persons who could trace any kind of direct descent, however remote, from a common ancestor of the original receivers of the wergeld. This law seems to us to reflect an ancient system of communistic ownership in movable property amongst the Germans. Indeed we may infer the existence of such a system from the account which Caesar[26] gives of the pre-Christian Germans. Even in the time of Tacitus the arable land of the Germans had not yet become private property.[27]

It is in this common control, or common ownership, of wergeld that we may find the explanation of the absence of wergeld-payments for homicide within the clan. Seebohm, speaking of the Welsh system, says[28]: ‘A murder within this wider kindred was regarded as a family matter.... There was no blood-fine or galanas within the kindred.’ We shall find at least one illustration of this important principle in the Iliad of Homer.[29] It is not a complete explanation of the principle to assert, as Fustel de Coulanges would assert,[30] that the kin-slayer had offended his domestic gods and that no payment could permit the continued presence of the murderer at the ancestral hearth fire in which the life of a kinsman had been violently submerged. In the phratry different clans had a common worship, and the murderer who paid wergeld joined in that worship. We agree with Coulanges that the attitude of the domestic gods towards kin-slaying differed from that of the phratry-gods towards ordinary homicide. But why? Because primitive man creates gods in his own image and endows them with his own emotions. It is with man, not with gods, that the ultimate explanation lies. The real explanation of the principle is to be found, we think, in a tradition ultimately resting on the common ownership of property.

Accepting this principle, we can understand more easily the punishment of kin-murder in tribal society. There are only three alternative penalties to wergeld: exile, bondage (or servitude) and death. It is natural to assume, and it has been rightly maintained,[31] that death was a loathsome penalty in days when relatives alone could avenge. It was therefore rarely, if ever, exacted. Bondage or servitude also, though sometimes found as a punishment for homicide,[32] would naturally be avoided as a sequel to kin-murder. There remains only the option of exile. Like Cain, the slayer of his brother, the kin-murderer must wander over the wide earth.[33] Expelled from his clan, his home, his property and his gods, he goes forth to slavery or to death in other lands. As a French writer puts it, ‘Alone, he has arrayed against him the universe.’[34]

When homicide occurred between members of different clans, death was never inflicted on the slayer, except in the last resort. It was, perhaps, in order to avoid this fate, that the slayer sometimes fled into exile. But it is doubtful if his flight cancelled any part of the wergeld except his own individual share, or the ‘spear-penny’ which he was expected to collect, if he was poor. It is certain however that the life of the slayer was never exposed to danger from the relatives of the victim so long as he remained in exile. That there were variations in the matter of accepting exile as part-payment of wergeld will be obvious from the following facts which we cite also as illustrations of the survival of wergeld in a modified form under feudal or ecclesiastical rule.

In the Canones Wallici, a code of laws which operated in Wales in the seventh century A.D., we find[35] that the slayer pays half the total wergeld, and his relatives pay half. The wergeld at this time consisted of three male slaves and three female slaves: if the slayer went into exile his half was cancelled, but his relatives had still to pay their half, or to follow him into exile. In the Burgundian homicide-laws of the fifth century A.D. we find[36] that the penalty for the murder of a freeman was death. The older wergeld penalty, which was now abolished for murder, was however retained in a certain form for minor degrees of guilt. Thus, for manslaughter, we have a list of blood-ransoms arranged according to the rank of the victim: for the unintentional slaying of a noble, the penalty was a payment of 300 solidi: for that of an ordinary man, 200 solidi, and so on. For slaying a person in self-defence, the penalty was reduced to one-half in each case. Amongst the laws of the early Norman Kings of England we find[37] the following, attributed to Henry I, in which a group of neighbours known as guild-brethren (congildones) are compelled to supplement the payments of the kindred. ‘If anyone commit homicide of this kind, let his relatives pay as much wergeld as they would have received if he (the slayer) had been killed: if the slayer have relatives on the father’s side and not on the mother’s, they pay as much as they would have received, that is, two-thirds the wergeld: if the slayer has only maternal relatives, they pay one-third the wergeld, the congildones one-third, and himself one-third: if he has no maternal relatives, the congildones pay half, and himself half.’ The manner in which feudalism gradually substituted the conception of murder as an insult to a king or to a lord for the older conception of it as an injury to the clan is clearly seen in the following law[38] attributed to King Henry I: ‘If the slain man has no kindred ... half shall be paid to the king, and half to the congildones (of the victim).’ In one portion of the Salic law we read[39] that if anyone slays a kinsman and goes into exile, his goods are confiscated to the royal treasury. Feudalism has thus exacted a new penalty which the clan-regime did not exact.

On the other hand we find a diminution in the collective punishment which tribal wergeld carried with it, in the law of King Edmund (A.D. 940-946) which may thus be rendered in modern English[40]: ‘If anyone henceforth slay any man, (I will) that he himself bear the feud unless with the aid of his friends he compensate it with full wergeld within twelve months. But if they will not pay, I will that all the kindred be free from the feud except the murderer, provided they do not afterwards give him food and protection.’ In such laws as these we catch a glimpse of a system of blood-vengeance which once prevailed amongst tribal peoples, but which soon became a mere echo, a phantom shadow of its former self, in the march of mightier movements, in the onward course of civilisation.

We have wandered far afield in the search for definite details of the wergeld system, as we shall look in vain for such details in the ancient literature of Greece, though we can have no doubt that the system prevailed in Greece for many centuries. It is true that in the laws of Gortyn we find[41] a classification of money-payments which were exacted for adultery and seduction at a period which no authority regards as earlier than the seventh century B.C., and which is generally believed[42] to be the sixth or fourth century B.C. These payments varied according to the rank of the offender and of the injured party: and also according to the particular circumstances of the offence.[43] But at the time of the Gortyn laws, Crete had passed out of the stage in which murder was materially compensated. Hence these laws contain no reference to the wergeld system. We must therefore be content to apply to the earliest societies of Greek lands the general principles of the payment of wergeld which we find operative in other tribal countries. We have in the text of Homer unmistakable evidence[44] for the payment of some form of wergeld. The only question that arises is: was this payment a mere sordid termination of a sanguinary feud, such as characterised the Montenegrins up to recent years, or was it a genuine tribal wergeld? Before attempting to answer this question, it will be necessary to examine briefly the nature of the societies which existed in Homeric Greece.

Section II

Fortunately, as a result of recent archaeological exploration we are now entitled to assume, what the ancient Greeks so naturally believed, that the Iliad and the Odyssey, the pioneer epics of European literature, are valuable historical documents for the period which preceded and followed the Trojan war. For our present purpose it does not very much matter whether the poems were composed by one great poet or by a number of rhapsodists, whether they were composed in Greece or in Asia Minor. The important thing is that they refer to actual places and events, to men and women who really lived and died. Just as Seebohm accepts the poem Beowulf as sole evidence for early Scandinavian tribal custom, even though he describes[45] the poem as an ‘Anglian or Northumbrian recension of a story founded on Scandinavian tradition and designed for recital at some eighth-century royal court,’ so we see in the Iliad and the Odyssey a genuine historical picture of Greece under the Achaean domination, even though these poems were not the work of contemporary hands, and contain certain passages and verses[46] which are clearly of later origin than that of the poems as a whole. It is only necessary for us here to refer to two recent works[47] of Dr. Leaf which furnish a cogent justification for this assumption. Professor Ridgeway, too, who has done so much to remove the veil of obscurity which has hung for so long over early Greece, has never wavered in his belief[48] in the historicity of Homer. We should indeed prefer to be wrong with Leaf and Ridgeway rather than to be right with such critics as Gilbert Murray[49] and Miss Harrison,[50] who see in the Homeric poems the culmination of centuries of literary work, which took final form and shape in the Athens of Solon and Peisistratus, in the atmosphere of the Persian rather than the Trojan war.

The Iliad and the Odyssey, however, if they are to be correctly interpreted, must be studied in the light of sociological analogy and archaeological research. Everyone is now familiar with the differentiation which the learning and genius of Ridgeway first defined in the population of early Greece, and with the distinction which he has indicated between the Achaeans and the Pelasgians.[51] In Homer, the peoples of Greece are called Achaeans: but Ridgeway holds that the Achaeans were not Greeks: that they were not even members of any Mediterranean race; that they were Celts[52] from Central Europe who descended slowly into Greece, who conquered the inhabitants by virtue of superiority in the arts and weapons of war, who settled and intermarried with native royal families, and who, in the course of two hundred years, had become assimilated to the natives in language and culture, until they lost all consciousness of difference.[53] Homer, the poet of the Achaeans, called the Greek-Achaean host, the mixed army of Pelasgians and Achaeans, by a name which belonged only to the Celtic kings in whose courts he sang his songs of praise. The Celtic Achaeans have lost their language but retained their name. The Pelasgians, according to Ridgeway,[54] spoke in the time of Homer an Aryan tongue so well that even their conquerors came to speak it and forgot their own. Yet they were not, in origin, an Aryan race! On this point we find it difficult to agree with Ridgeway, though we admire the scientific reasoning and the profound learning which support his theory. The precise nature of the social organisations of early Greece, Ridgeway does not attempt to decide—at least in his ‘Early Age of Greece’: but we infer from an article which he has written on Homeric land-tenure[55] that he believed, as does Mr. H. Seebohm,[56] that both Achaeans and Pelasgians were tribal peoples.

Some of the difficulties presented by Ridgeway’s reasoning are removed, in our opinion, by the more recent theories of Dr. Leaf. Before the advent of the Achaeans to Greece about 1400 B.C.,[57] there already existed in Greece, according to Leaf, two social and racial strata: (1) a dominant non-Aryan[58] caste who came originally from Crete, and who may be called Minoans: (2) a primitive neolithic agricultural Aryan people who spoke Greek,[59] who were, in fact, the nucleus of the Greek race, and who had imposed their speech upon their non-Aryan masters. The Achaeans, in Leaf’s view, came as a wave or series of waves in the perpetual tide of invasion from the north.[60] Settling first in Epirus,[61] they pressed gradually southwards, subdued the Minyans (or Minoans) of Iolcos,[62] and the Pelasgians of central Greece,[63] crossed later to the Peloponnese, and having conquered Elis, Laconia and Argolis, established themselves in all the strategic positions of the peninsula.[64] They were not necessarily, in Leaf’s opinion, of different racial origin from the Pelasgians[65]: they may, in fact, have been remotely related to them. But the Achaean outlook and temperament were very different from those of the Pelasgian folk. The former were military freebooters; piratical adventurers,[66] bound together by that rigid obedience to a single commander which was an essential condition of their survival and success. The latter were tillers of the soil, accustomed to political serfdom,[67] paying such dues as their masters exacted, following them, on occasion, to battle and to death. One point of difference which Leaf mentions must be here especially emphasised, as it is of vital importance for our theory of Homeric blood-vengeance. The Achaeans, Leaf holds,[68] had no tribal or ‘kindred’ organisations, and were merely soldiers of a common army. The Pelasgians,[69] however, were for the most part organised on the model of tribal communities. Speaking of the Achaeans, he says[70]: ‘All the rites and taboos of the primitive Family-system have disappeared and obligation only attaches to the natural kinship of close blood-relationship.... This is what we should expect in a race of military adventurers. Family rites do not tend to military efficiency: the efficient soldier must break away from local ties. In so doing he takes a long step away from the foundations of primitive society and religion.’ Thus Leaf conceives the society of Homeric Greece as composed of two elements: (1) a military autocracy, ruling like the Spartans in Laconia, a small exclusive caste held together by the consciousness of a common origin and a common purpose and also by the danger of hostility from without: (2) a tribal agricultural subject-folk who lived their primitive lives in rural areas, in villages, in unimportant towns, and even in cities within view of the Achaean garrison. Now this conception differs fundamentally from the traditional ideas of Homeric society, and in particular from the conception of the Achaeans as a tribal people, which we have associated with Ridgeway and H. Seebohm. We believe that an attempt to decide this question is necessary for the elucidation of many Homeric problems, such as that of blood-vengeance or of land-tenure. We shall adduce evidence, in our study of Homeric blood-vengeance, which will serve as a confirmation of Leaf’s hypothesis. At present we will confine ourselves to some more general arguments which can be regarded as supplementary to the evidence which Leaf himself puts forward.

Ridgeway, in discussing[71] the mode of land-tenure in Homeric Greece, seeks to prove that the Homeric poems reveal an evolution in the private ownership of land, beginning with a stage in which, as in the Iliad, land is held in common by all tribesmen except the king or chief whose temenos is private and personal and probably hereditary, and progressing to a stage in which, as in the Odyssey, ‘allotments’ among tribesmen tend to accumulate and to become more and more a family inheritance within the tribe, without attaining to the stage of absolutely private ownership which we find in the time of Hesiod. Such an evolution is, of course, a characteristic feature of settled tribal existence. Sir Henry Maine, in his interesting analysis[72] of the origin of private property in land, distinguishes three stages of its growth. In the first stage, there is communal ownership, both of land and harvest, such as is still found among some Highland clans of Scotland: the food-supplies of individuals are doled out, sometimes daily, by the chiefs of the clans.[73] The periodical distribution of the ‘harvest,’ such as was made by the elders of tribal Slavonic subjects in the once mighty Austrian and Turkish Empires, marks a slight modification of this system, which does not, however, affect the tenure of land.[74] ‘In the Russian villages, however,’ says Maine,[75] ‘the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up.... After the expiration of a given, but not in all cases of the same, period, separate ownerships are extinguished, the land of the village is thrown into a mass: and then it is redistributed among the families composing the community, according to their number.’ The third stage finds an illustration in India, where, as Maine says,[76] ‘not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the de facto partition of the stock being, however, checked by inveterate usage and by the rule against the admission of strangers without the consent of the brotherhood.’ Though neither Maine nor Ridgeway mentions the analogy, we think we can trace some such evolution in the old German tribes as described by Caesar and by Tacitus. Caesar tells us[77] that here ‘no one has a fixed portion of land, his own peculiar property, but the magistrates and chiefs allot every year to tribes and clans as much land as, and in whatever place, they think proper, and they oblige them to remove the succeeding year.’ Tacitus, however, says[78] that ‘the lands are occupied by villages, in groups, in allotments proportioned to the number of cultivators, and are presently parcelled out among individuals according to rank and condition: the arable lands are annually changed.’

Such a theory of evolution in landed property within the tribe may, however, be complicated by the coexistence, in the same district, of tribal groups and of a dominant ‘feudal’ caste. Maine points out,[79] in reference to Russian village-communities, that ‘these villages are always in theory the patrimony of some noble proprietor, and the peasants have within historical times been converted into the predial and, to a great extent, into the personal serfs, of the seignior. But the pressure of this superior ownership has never crushed the ancient organisation of the village.’ Now if we adopt the hypothesis of two distinct strata in the Homeric society, namely, of a dominant quasi-feudal Achaean caste, and of a tribal Pelasgian subject-folk, we shall be justified in assuming that some such ‘superior ownership’ coexisted with tribal ownership in the world of the Homeric poems. We shall expect to find a predominance of private ownership on the one hand, and a trace or ‘reminiscence’ of communal ownership on the other, in the verses of a poet who reflected in the main the atmosphere of the Achaean lords, but also, incidentally and fortuitously, that of the subject people. We must, then, consult the text of Homer if we hope to decide whether the Achaeans were quasi-feudal adventurers who ruled over the Pelasgians, without disturbing or destroying their normal tribal life: or whether the Achaeans, themselves a tribal nomadic people, adopted, by a social fusion, the tribal ownership which existed amongst their subjects, the chiefs alone possessing ‘private land,’ the others, common land. As the Homeric references to land-tenure are rare and obscure, it is obvious that the solution of the problem of Homeric land-ownership depends entirely on the answer to this wider and more important question.

In Iliad xii. 422-426 Homer makes use of a simile derived from a current mode of tenure of arable land, in order to describe the fierceness of the conflict between the Argives and the Lycians. ‘As, in a common field, two men make quarrel over boundaries, with measures in their hands, and strive for equal rights, even inch by inch, so, too, were they (the Argives and the Lycians) by (the brief space of) the battlements divided.’ This passage proves beyond question that the poet and his hearers were familiar with a certain degree of communism in the use of arable land. Whether the reference is to a social condition in which, as in the German tribes at the time of Tacitus, the arable land was redistributed annually to individuals, or whether the land was redistributed after long intervals of undisturbed enjoyment, as was the custom in certain Russian villages, it is impossible, as it is unnecessary, to decide. The really important point which we wish to emphasise is that there is no evidence that the quarrelsome tillers of the soil were Achaeans. This passage does not prove that the Achaeans lived in clans and tribes and possessed their lands in communal fashion. It merely proves that they were familiar with the existence of such a mode of possession. Incidentally, also, it proves how strong and how passionate, even in tribal rustic folk, the instinct begotten of even temporary private ownership may be. Yet this is the principal text of Homer upon which has been based the theory of the tribal nature of Homeric society!

In Odyssey vi. 6-10 we are told how Nausithous, the Phaeacian, brought his people to Scheria, ‘and drew a wall around the town and builded houses, and made temples for the gods, and meted out the fields.’ Here we may observe that elaborate ceremonial which, as Fustel de Coulanges points out,[80] was characteristic of the foundation of cities or of settlements in Ancient Greece and Rome. The distribution of land was an essential condition of agricultural existence for tribes which had already developed a certain degree of private ownership. But this passage merely proves that groups of people were known to change their habitations.

In Iliad vi. 190-195 we learn that a king of Lycia gave to Bellerophon, as a dowry for his wife, half his valuables (τιμή), and the Lycians gave him a domain (τέμενος) superior to that of others. Ridgeway and H. Seebohm maintain that the only land which is held in private ownership, in the Iliad, is the domain of kings and princes. In this passage we admit the probable operation of tribal ownership, but we must point out that the Lycians were not Achaeans. A more relevant citation is Iliad ix. 574-84, a passage in which we are told that the Elders and Priests of the Aetolians offered a choice of their richest lands as a ‘domain’ to Meleager. H. Seebohm holds[81] that it is improbable that the richest lands were at the time unoccupied and that such an offer therefore proves the existence of a communal land-tenure which would admit of such a rapid partition and consequent readjustment. Again, we admit that tribal ownership may be inferred from this passage, but we deny that the donors of the domain were necessarily members of the Achaean caste. It is true that the Achaeans ruled over Aetolia, but there still survived many rich Pelasgian tribes. Even if we knew that the donors were Achaeans, it would not be necessary to conclude that the Achaeans lived in tribal groups, for the partition and readjustment might have been equally simple for rich quasi-feudal owners acting in unison.

In Iliad ix. 147-155 Agamemnon, the Achaean war-chief, says that he will give to Achilles, as a dowry with his daughter, ‘seven cities, around Pylos, having men abounding in flocks who will worship him with gifts as a god and obey him.’ Those who conceive the Achaean heroes as tribal chieftains will find it very difficult to explain how a chief can thus wantonly confiscate the territory of his allies. Pylos was in the ‘kingdom’ of Nestor, a Minoan ally of the Achaeans. No confederation of tribal chiefs engaged in a common war could survive such a confiscation. But the offer of Agamemnon becomes intelligible enough if we regard him as the leader of a dominant military power, or as the feudal over-lord who possessed by right of office a ‘superior ownership’ of all the lands of Greece.

In Odyssey iv. 171-177 Menelaus says that he would have given to Odysseus, had he been there on his return from Troy, a whole ‘city to dwell in,’ and that he would have built for him a house, and brought him from Ithaca, together with all his wealth, his son and all his people, ‘making one city desolate, of those that lay around, in his domain.’ H. Seebohm finds it difficult to understand this passage in the light of his tribal theory of the Achaeans. It is, he says,[82] unusual, and merely shows the despotism to which a tribal chief frequently attained. But we prefer to see in Menelaus the typical Achaean over-lord, who by virtue of his kinship with Agamemnon, and of his own feudal and military power, tramples with impunity upon a whole city and moves a whole people from place to place, not as a chief would lead his tribe, but as a medieval baron might move his villeins from one part of his territory to another.

In the realm of Odysseus one seeks in vain for cogent evidence of tribal conditions. The shameless conduct of the suitors of Penelope, in devouring the substance of the absent Odysseus, and in plotting the assassination of his son and heir,[83] as also the cruel hyper-vengeance which Odysseus with impunity wreaked upon them, seem to us more suggestive of feudalism and autocracy than of genuine tribalism. In tribal communities an immense importance attaches to questions of marriage and inheritance. The voice of the ‘folk-moot,’ of the clan-gathering, can and must be heard. It is true that in the Odyssey[84] the disguised Odysseus, in questioning his son as to why he had not driven the suitors from his house, asks significantly: ‘Do the people hate thee?’ But it is equally true that in the domestic drama of the realm of Odysseus the rank and file of the people are ignored. For our part we feel that we move in that atmosphere of autocratic militarism which, in ancient Thessaly or Macedonia, and in medieval Europe, exalts the dagger of the assassin and the intrigue of the paramour.

In Odyssey xiv. 208 we are told that when a certain rich man, named Castor, died, his sons divided up and cast lots for his property. This procedure would be perfectly normal in modern society if the owner died intestate and the property was not entailed. We hear nothing in this narration of any clan-council having determined the right of succession, as would ordinarily occur in tribal conditions.

In Odyssey xix. 294 it is said that the wealth which Odysseus has amassed would suffice for his posterity even unto the tenth generation. The selection of the number ten in this passage seems to us to indicate a possible reference to tribal life. F. Seebohm, speaking of medieval Welsh tribes, lays stress on the length of time which had to elapse before a ‘stranger’ could become a tribesman, pointing out[85] that even the great-grandson of a stranger could not be a tribesman, though he could be recognised as the founder of an embryonic clan, whereas a semi-servile stranger’s descendants could not attain to the rank of tribesmen until the ninth generation had passed away. Hence the saying that a man’s wealth would suffice for ten generations could easily, in tribal language, have become a proverb. It would simply mean that a man’s posterity would never be in want, for after nine generations any man’s descendants could have formed a tribal organisation and possessed tribal wealth of their own. But must we conclude from this that Odysseus was a tribesman? No conclusion could be less cogent. It is true that the Achaeans, at the time of the Trojan war, were long enough settled in the country to have produced the nucleus of clans and tribes, for they had ruled over Greece for two hundred years. Thus the Achaean Melampus, a contemporary of Nestor and Atreus, founded a family in Argos, the development of which may thus be traced in Homer[86]:

Here we find kinship extending to second and third cousins. Such kinship exists everywhere in the world to-day, but it clearly does not constitute a clan or a tribe. When, therefore, in Homer,[87] Theoclymenus is said to have killed a man who is described as ἔμφυλος in relation to his slayer, we must not suppose that the deceased was a tribesman. The word ἔμφυλος should be translated as kinsman,[88] not tribesman. Several instances may be found in Homer of tribal phrases and expressions applied in non-tribal contexts. Thus the word γένος which ordinarily means ‘clan’ is used in Homer to denote a family in the modern sense,[89] or to mean ‘blood-descent,’ and kinship.[90] Rarely or never does it carry its proper meaning. If the social organisation of the Achaeans had been of a tribal character, surely the Homeric use of the word γένος would have been different from what it actually is. Leaf calls attention[91] to the very rare occasions on which Homer refers to such groups as the clan, the phratry, and the tribe. Nestor says to Achilles that ‘the lover of domestic strife is a man without hearth or law or phratry,’[92] and the same Nestor urges Agamemnon to divide his fighting forces ‘by tribes and phratries,’[93] but these solitary references no more compel us to regard Achilles and Agamemnon as tribal chiefs than the tribal proverb concerning the tenth generation compels us to regard Odysseus as a tribal patriarch. Such references are rather, as Leaf says,[91] ‘reminiscences,’ reflections, whether in the mind of a Minoan or of an Achaean, of conditions which prevailed universally amongst the subject Pelasgian peoples.

We may then confidently conclude that the evidence of the Homeric poems is much more consistent with the theory that the Achaeans were a quasi-feudal military caste than with the theory which conceives them as tribal nobles. We may think of the Achaeans, in their relation to the Pelasgians, very much as we should think of the soldiers of the ancient Roman Empire quartered in a province.[94] When the Burgundians came to France about A.D. 500 they were regarded,[94] by a polite fiction, as guests, and were presented with hospitalitas, consisting of two-thirds of the land and one-third of the slaves! When the Achaeans conquered Greece, they lived, indeed, in garrison-towns and sought to maintain a splendid isolation in their lofty fortresses, but they took unto themselves the richest lands and the fattest cattle and sheep, leaving the Pelasgians to till the soil and to squabble about boundaries. But when after two or three hundred years the Achaeans met a somewhat similar fate to that which they had meted out to Greece and to Troy, the tribal nobility of the primitive Pelasgians once more asserted its ancient privileges.

FOOTNOTES

[1] Infra, p. [4 f.]

[2] See infra, pp. [6-11].

[3] Numbers xxxv.

[4] Il. xviii. 500 ff.

[5] See Stubbs, Select Charters, p. 201.

[6] 621 B.C. onwards.

[7] See Numbers xxxv.

[8] See Récluse, Universal Geography, vol. i. p. 181 ff.

[9] Ib. pp. 346-7.

[10] See Récluse, op. cit., vol. i. p. 366.

[11] Ib. p. 321 ff.

[12] Ib. pp. 121-122.

[13] Early Age of Greece, p. 277.

[14] Récluse, op. cit. pp. 175-6.

[15] Ib. vol. xviii. p. 442.

[16] Ib. p. 246.

[17] See Glotz, La Solidarité de la Famille, p. 213.

[18] See Glotz, loc. cit.

[19] Deut. xxi. 1-8.

[20] Infra, pp. [64-74].

[21] Germania, chap. xxi.

[22] See article s.v. ‘Homicidium’ in Ramsay’s Dict. Rom. Ant. p. 348 ff.

[23] See Tribal Custom in Anglo-Saxon Law, pp. 30-55.

[24] Op. cit. pp. 43 ff.

[25] F. Seebohm, op. cit. pp. 150 ff., and Maine, Ancient Law, p. 233.

[26] Bell. Gall. vi. 21.

[27] Germania, chap. xxvi.

[28] Op. cit. p. 55.

[29] Il. ii. 662 ff.; infra, p. [47 ff.]

[30] See Ancient City (trans.), p. 125.

[31] Seebohm, op. cit. p. 55; Glotz, op. cit. p. 34.

[32] See infra, p. [44 ff.]

[33] Genesis iv. 11-16.

[34] Glotz, op. cit. p. 45.

[35] Seebohm, op. cit. p. 109.

[36] Seebohm, op. cit. p. 123

[37] Ib. p. 323.

[38] Loc. cit.

[39] Op. cit. p. 164.

[40] Ib. p. 356.

[41] See Dareste-Reinach, I.J.G. tome i. pp. 352-493.

[42] See Caillemer, in Daremberg and Saglio’s Dictionnaire, p. 1630.

[43] See also Glotz, op. cit. pp. 383-5.

[44] See infra, p. [31 ff.]

[45] Op. cit. pp. 56-72.

[46] See Leaf, Homer and History, pp. 83-86, 98 ff.

[47] See his Homer and History and Troy.

[48] See Early Age of Greece, p. 635.

[49] See Rise of the Greek Epic, passim.

[50] See Themis, pp. 335, 445 ff.

[51] Op. cit. pp. 90-337.

[52] Ib. pp. 339, 355, 370, 406.

[53] Ib. p. 95.

[54] Ib. pp. 678 ff.

[55] See J.H.S. vol. vi. pp. 319 ff.

[56] See Greek Tribal Society.

[57] See Homer and History, p. 41; also Bury’s article, Quarterly Review, July 1916.

[58] Leaf, op. cit. p. 37.

[59] Leaf, op. cit. p. 37.

[60] Ib. pp. 41, 49.

[61] Ib. pp. 49-50.

[62] P. 51.

[63] P. 222.

[64] Pp. 50-52.

[65] Pp. 37, 247.

[66] P. 252.

[67] Pp. 37, 247.

[68] Pp. 251-252.

[69] Pp. 250, 251, 258.

[70] Pp. 251-252.

[71] J.H.S. vol. vi. pp. 319 ff.

[72] See Ancient Law, pp. 214 ff.

[73] Op. cit. p. 223.

[74] Ancient Law, p. 223.

[75] Ib. p. 221.

[76] Ib. p. 223.

[77] Bell. Gall. vi. 21.

[78] Germania, chap. xxvi. adopting emendation vicis.

[79] Op. cit. p. 221.

[80] Ancient City (trans.), p. 57.

[81] Op. cit. pp. 103, 118.

[82] Op. cit. p. 115.

[83] Od. xvi. 369-385.

[84] xvi. 95 ff.

[85] Op. cit. p. 51.

[86] Od. xv.

[87] Od. xv. 273 ff.

[88] So Butcher and Lang, trans. ad loc.

[89] Od. viii. 573.

[90] See Il. xiii. 354; Od. vi. 35, 209, xv. 533.

[91] Op. cit. p. 251 n.

[92] Il. ix. 63 ff.

[93] Il. ii. 362.

[94] F. Seebohm, op. cit. p. 122.

CHAPTER II
THE PELASGIAN SYSTEM

Current views explained and criticised: author’s view: proofs from the text of Homer: question of a distinction between murder and manslaughter, and between justifiable and unjustifiable homicide: collectivity in vengeance.

The opinions which have hitherto prevailed among scholars in regard to early Greek blood-vengeance are more or less unanimous. They seem to be based on an assumption of homogeneity in the society depicted by Homer. Expressed in terms of the modes of vengeance which we have described in the preceding chapter, the customs of Homeric Greeks in regard to homicide have been conceived as a confusion of modes I, II, and III—as a mixture of restricted and unrestricted vendetta and wergeld. Thus, Eichhoff[1] holds that in Homer murder is a ‘private’ affair, and that the slayer must go into exile if the ‘money’ paid to the injured family is not accepted. Bury[2] says: ‘According to early custom which we find reflected in Homer, murder and manslaughter were not regarded as crimes against the State, but concerned exclusively the family of the slain man, which might either slay the slayer or accept compensation.’ Grote[3] says: ‘That which the murderer in Homeric times had to dread was not public prosecution and punishment, but the personal vengeance of the kinsmen and friends of deceased. To escape from this danger he is obliged to flee the country, unless he can prevail upon the incensed kinsmen to accept of a valuable payment as satisfaction for their slain comrade.’ Jevons[4] says: ‘If the family of the murderer were not content to pay the wergeld, the murderer generally found it expedient to flee into a far country, for, if he remained he would assuredly be killed in revenge.’ In a foot-note in Butcher and Lang’s translation of the Odyssey,[5] we are told that ‘as a rule blood called for blood, and the manslayer had to flee from the kindred who took up the feud.... It is superfluous to remark that the “price” as an alternative to vengeance is a widespread custom.’ Glotz[6] speaks of death, exile, wergeld, and slavery as possible penalties everywhere. He seems to believe that there existed in Homeric times that collective and hereditary vengeance which is so characteristic of barbarous peoples, but for this view he has adduced no evidence apart from post-Homeric legends. In an article in Daremberg and Saglio’s Dictionnaire des Antiquités Grecques et Romaines,[7] we are informed that ‘originally’ homicide is an offence only against the family of the victim, and all the members of the ‘famille outragée’ have a right and a duty of vengeance. To escape this vengeance the murderer has no other resource but exile. His exile will exempt his kinsmen from the reprisals to which they would otherwise be exposed.[8] As the murderer will be most often supported and defended by his family, a war of families will lay desolate a whole country: in course of time, and with the softening of human character, the offended family will renounce its vengeance, and enter into a bargain with the murderer and his family. He will be permitted to return from exile, but, as a rule, only by payment of ‘compensation.’ His relatives will furnish him with this payment (ποινή), at once the price of the blood shed and the ransom of the murderer’s life. The payment is vaguely defined at first, varying with the importance and the wealth of families. For murder within the family (γένος), there is no question of wergeld. A compromise is effected by which the family waive their right to kill the murderer on condition that he leaves the γένος—‘ils se bornent au bannissement du coupable, rompant ainsi, par son expulsion, les liens qui le rattachaient au γένος.’[9]

All these critics appear to suggest that the early age of Greece presents us with a more or less homogeneous but undeveloped and quasi-barbarous race[10] which slowly and gradually evolves into something like civilisation in the time of Dracon and Solon. Thus conceived, the homicide-customs of Homer are very similar to those of the Montenegrins of modern times, who have long lived in a condition of social chaos and who accept, in atonement for homicide, a payment of money when there is hardly anyone left to pay it!

Leaf, who in Homer and History[11] (1915) differentiates very clearly between the Pelasgian and the Achaean elements in the societies of Homeric Greece, points out that to the Achaeans ‘homicide is a local and family affair, and brings no disability other than exile from home.’ A wealthy and generous king can give opportunities of advancement beyond all the hopes of a narrow family circle. To an ambitious Achaean (as witness Patroclus,[12] Phoenix[13] and others[14]), exile in such circumstances is not a real punishment. When Leaf observes, in regard to the Achaeans, that ‘thus the most sacred of all taboos, the shedding of kindred blood, loses its final sanction,’ he seems to hint at the existence, in the Homeric society, of a non-Achaean attitude to homicide. He does not however explain the precise nature or origin of this attitude.

Moreover, in Homer and History, Leaf does not suggest any solution of an important problem to which he refers in previous works—the problems presented by the reference to wergeld in the Homeric passage which describes the Shield of Achilles.[15] In a note of his translation of the Iliad (1883), he said[16]: ‘The trial scene is one of the most difficult and puzzling passages in Homer.... The whole passage is clearly archaic, but the difficulty lies in the fact that no parallel, so far as we know, is to be found in the procedure of any primitive races which throws any light upon this passage.’ In his Companion to the Iliad (1892) and in his latest edition of the Iliad (1902), in a note on the passage in question,[17] he put forward an hypothesis which seems to suggest that he conceives the Homeric Greeks as quasi-barbarous peoples. Having indicated the frequency of blood-for-blood retaliation in the Iliad, he interprets the trial-scene as representing a stage in the evolution of homicide customs from more primitive conditions. ‘It seems absolutely necessary to assume an intermediate stage in which the community asserted the right to say in every case whether the next of kin should, for reasons of public policy, accept compensation, and the missing link is apparently brought before us here.’

By assuming that the trial-scene represents, not a murder trial (which few now maintain) nor yet a wergeld debt trial, i.e. an inquiry as to whether wergeld has been paid or not, but a piece of novel homicide legislation, Leaf thinks that ‘the scene gains enormously in importance.’ Postponing for a time[18] our criticism of this view, published thirteen years before the date of Homer and History, and deferring the solution which we shall offer of the difficulty, we proceed to state our own theory of the homicide customs of Homer. This theory is based in the first place on a distinction between an Achaean dominant caste and a subject Pelasgian people; secondly, on the hypothesis which Leaf puts forward as to the different character and mode of life of the Achaeans and the Pelasgians—the former being conceived as a race of bellicose military adventurers living in isolated groups; the latter, as an agricultural subject-people, tillers of the soil, who preserved intact their tribal organisations; thirdly, on the connexion existing between the homicide customs of a people or caste and their temperament and social organisation—a connexion which is established by a general study of blood-vengeance amongst various peoples; and, finally, on a correct interpretation of the text of Homer.

Our theory is as follows: there existed in Greece at the period of the Achaean domination (1300-1100 B.C.) two fundamentally distinct social strata, each having a distinct characteristic attitude to homicide, and observing distinct modes of blood-vengeance. The two modes coexisted side by side without affecting or modifying each other, but their coexistence produced a slight confusion of thought and an absence of clear discrimination in language in the Homeric poet (or poets) who were in contact with the two social strata, and who were familiar with the two modes of vengeance, but who almost ignored the one and exalted the other, out of courtesy to the masters whose praises they sang. These two modes of vengeance, which we will call respectively Achaean and Pelasgian, may be thus described: (1) Amongst the Achaeans the normal penalty for homicide is death. Their system is private vendetta, of a restricted character, such as we have already described in our introductory chapter. The vengeance is quite personal and individual, that is, the murderer alone is liable to the blood feud, which is therefore neither collective nor hereditary. Vengeance is a duty which devolves upon the dead man’s sons or brothers, but we may include the possibility of support from a kindred of limited extent[19]: a kindred which may be an embryonic clan, but whose attitude to homicide is quite different from that which normally characterises a clan. Wergeld is not accepted, even though it is known to exist outside the caste: exile is not a recognised appeasement or atonement, but is merely a flight from death, and the Achaean murderer frequently takes refuge with a king or a wealthy man. We shall describe this Achaean system more fully in a later chapter. (2) The Pelasgian mode will be found to be that which we have described in the Introduction as the ‘tribal wergeld’ mode, though it may have evolved from a more barbarous mode before 1300 B.C. In this system there are three or four recognised alternative penalties: (1) ‘wergeld,’ which is the normal measure of vengeance or retribution, and which is so frequently associated with tribalism; (2) exile, which involves a formal and solemn expulsion from the ‘group,’ a serious penalty for anyone born and bred in the atmosphere of tribal life and religion; (3) death, which is rarely inflicted, but is a possible alternative if neither ‘wergeld’ nor exile is accepted by the murderer or his clan; (4) we may add, with Glotz,[20] though there is no definite Homeric evidence for its existence, the option of slavery or servitude. This is not the slavery which is found in later times in Home and in Greece, when there was a regular slave trade, nor is it the temporary ‘slavery’ which is involved in being ‘kidnapped’ and held to ransom—a frequent occurrence in Homer; it is, however, akin to this latter condition, inasmuch as it involves a state of bondage, from which a murderer can be redeemed, not by the payment of such a price as his ‘redeemer’ can be induced to pay, but by the payment of such valuables as have been determined by long tradition—his quota of the wergeld of the clan.

Proofs from the Text of Homer

In our introductory chapter we pointed out the connexion which exists between the homicide customs of a people or caste and their temperamental outlook and social organisation; we have quoted Seebohm’s views as to the essentially tribal character of the wergeld-exile-death system; and, therefore, anyone who accepts Leaf’s hypothesis as to the nature of the Achaean and Pelasgian social strata will be prepared to admit that our hypothesis as to Pelasgian blood-vengeance is logically a priori probable. In a later chapter we shall seek further confirmation of our theory by explaining the difference in the religious beliefs of the Achaeans and the Pelasgians, and by indicating their different attitudes to the judicial aspect of homicide. We now proceed to the crucial test of our opinions—the evidence of the Homeric poems.

In Homer the word ποινή occurs very frequently. Glotz[21] thinks the word is connected with the verb τίνειν (to pay). He says: ‘De vrai, ποινή doit être rapproché de τίνω et des mots apparentés, τίνυμι, τιμάω, τίσις, τιμή.’ Others[22] however hold that it is connected with the root pu, found in Greek πῦρ, and Latin purus, punire, poena. The word ἄποινα seems akin in origin to ποινή, but in Homer it is invariably used of a ransom or gift of valuables.[23] We do not think that Glotz[24] has quite succeeded in his attempt to prove the evolution of the word ποινή from an earlier meaning of ‘blood-vengeance’ to a later one of pecuniary satisfaction, at least within the limits of the Homeric poems. His reasoning is very similar to that known as ‘squaring one’s premises to one’s conclusions’: he is not aware of any distinction between Achaeans and Pelasgians, and he finds the Homeric use of ποινή rather difficult to explain. He must have been aware of the fact—one which we consider of great importance—that in Homer the word ποινή nearly always means ‘punishment’ or ‘revenge’ rather than ‘compensation’ or ‘ransom’: he is certainly aware that, while ποινή can mean a pecuniary satisfaction for a material wrong or injury, and can mean the ‘ransom’ of a captive or of a warrior’s dead body, nevertheless there are only two instances in all Homer in which ποινή can be formally interpreted to mean wergeld. Thus he says,[25] ‘On songe aux deux passages de l’Iliade où il est formellement parlé de composition pour homicide. Ce sont le discours d’Ajax à Achille au chant ix et la scène judiciaire figurée sur le bouclier d’Achille au chant xviii.’ It is by a close examination of these two passages that we hope to solve the difficulty connected with the Homeric ποινή. But, first, let us say that the word ποινή is precisely the kind of word which may easily possess a general as well as a special significance. The ideas of ‘payment’ and ‘punishment’ may, in certain circumstances, coalesce: and it is probably because Homer was subconsciously aware of the fusion of ideas involved in the use of the word ποινή, that he employs another word of kindred meaning, ἄποινα, to denote a payment in which the idea of ‘punishment’ is absent or obscured.

In Homer, the word ποινή is used to denote a variety of ideas ranging from ‘punishment in general,’ such as death inflicted in vengeance, to ‘compensation for injury’: thus in Iliad xvi. 398 Patroclus, having slain many foemen in battle, is said to have thus exacted vengeance (or payment) for many Greeks who had fallen:

κτεῖνε μεταΐσσων, πολέων δ’ ἀπετίνυτο ποινήν.

There is no question of ‘payment of goods’ or ‘wergeld’; it is merely the vengeance which a warrior inflicts upon his enemies. In Iliad xxi. 28 Achilles chooses out twelve Trojan youths whom he afterwards burns on a funeral pyre. His motive may have been to placate the shade of Patroclus, by sending him ‘souls’ to be his slaves in Hades, or, less probably, to gratify the desire of the shade for vengeance. The youths are spoken of as ποινὴ Πατροκλοῖο: clearly they are not ‘goods or valuables,’ and are neither ‘paid’ nor ‘received.’ The poet may have been conscious of an undercurrent of meaning, if he had known of bondage or slavery as a penalty for murder in the tribes. But the slaying of Patroclus was not murder! The ποινή of Patroclus is not even ordinary blood-vengeance, it is merely the retaliation of an indignant warrior.

Again, in Odyssey xxiii. 312 Odysseus tells Penelope how he exacted from the Cyclops punishment for the slaying of his companions,—ὡς ἀπετίσατο ποινὴν ἰφθίμων ἑτάρων. The Cyclops was regarded by Homer and the Achaeans as one of a lawless band of men who, as the poet says, ‘have no plants or plough, no gatherings for council nor laws—each one giveth law to his children and wives, and they reck not of one another’: he was thus the very antithesis of tribal or of civic society. The payment exacted was not wergeld, but the loss of an eye! In Iliad v. 266 ποινή denotes merely compensation for injury—there being no question of murder at all. Zeus, having carried off Ganymede, the son of Tros, gave Tros a gift of horses as compensation—υἷος ποινήν Γανυμήδεος. It was really a case of ‘kidnapping,’ but Ganymede was not ‘held to ransom’—a price is paid for his loss, which is very different from wergeld.

In Iliad xiv. 483 Akamas having slain Promachus tells how ‘Promachus sleeps, done to death by my sword, lest a brother’s vengeance (ποινή) be too long unpaid.’ Here we have a formula of blood-vengeance applied to the collective vengeance of war. Akamas does not seek the life of Ajax, the slayer of his brother, but is satisfied by slaying any individual of the enemy as a ‘satisfaction’ for his brother. But there is no question of wergeld: death is the penalty desired and exacted. Though the phrase δηρὸν ἄτιτος could be regarded as a reminiscence of the wergeld system, in which a period of time was normally allowed for payment, it is quite naturally applicable to blood-for-blood revenge, as δηρὸν can simply mean ‘a long time,’ and the tendency of such vengeance was to quick retribution.

In Iliad xiii. 659 we are told of the slaying in battle of Harpalion, son of Pylaimenes, king of the Paphlagonians. ‘And the Paphlagonians tended him busily, and set him in a chariot and drove him to Ilios sorrowing, and with them went his father, shedding tears, and there was no atonement (ποινή) for his dead son.’ It is obvious that even if we suppose the Paphlagonians (who were not Achaeans) to have had clans and tribes and wergeld payments in their normal home life, we cannot attribute to them any expectation of wergeld for a man killed on the field of battle. Nor could the absence of such a compensation, to a king who had much more wealth than he could ever enjoy, be regarded as a cause of tears. Hence the word ποινή here must mean blood-vengeance, the satisfaction arising from blood-for-blood retribution: and this satisfaction was frustrated because the Paphlagonians did not happen to see the man who slew Harpalion.[26]

There are only two passages in Homer in which ποινή unmistakably refers to the genuine wergeld penalty. If those passages were missing no one could speak of wergeld as a penalty for homicide in the society described by Homer. We shall now examine those passages with a view to showing that they do not represent the normal system of the dominant Achaean caste, but are merely what Leaf would call ‘reminiscences,’ traces of a system with which Homer and the Achaeans were familiar, but which they did not adopt or practise amongst themselves.

In the first passage (Iliad ix. 632-7) the scene is the tent of Achilles before Troy. Owing to the secession of Achilles from the Greek fighting-line the Trojans had been rapidly gaining the upper hand and the Greeks were only saved from destruction by the sudden approach of night.[27] An embassy is sent from Agamemnon to Achilles to induce him to waive his wounded pride in the interest of the Achaeans, and promising not only the restoration of his concubine Briseis but also a grant of seven cities in the Peloponnese and many splendid gifts. Achilles rejects every possible ‘satisfaction’[28] and implies that the insult offered to him was so great that nothing short of the destruction of Agamemnon and his army would assuage his wrath. Odysseus and Phoenix having failed to bend his haughty spirit, the third member of the embassy, Ajax, son of Telamon, who was certainly an Achaean, reproached him with his indifference to the fate of his Achaean comrades, who loved him, and reminded him of the self-control possessed by other men in directing their passion for revenge, even when afflicted by a much graver injury—that of murder. ‘Yet,’ he says, ‘doth a man accept payment (ποινή) from the murderer of his brother or for the slaying of his son: and the manslayer abideth in his home-land when he hath paid a goodly price, and the man’s heat and proud spirit is restrained when he hath accepted the payment—but for thee the gods have put within thy breast an evil and implacable spirit.’ When Ajax delivered this speech, he had already despaired of the success of the embassy[29]: and he mentioned the act of the receiver of wergeld, not as the act of a normal Achaean hero—the Achaeans of the Homeric age are of a very different type—but as an act which was characteristic of a well-known kind of temperament, an act which, he thought, might serve to emphasise the extreme abnormality of Achilles’ desire for vengeance. If Achilles had had a son or a brother who was murdered, and if he were on the point of crushing a whole village in revenge, the argument of Ajax would have been more relevant to the case, but even then it could not be taken to imply that either Ajax or Achilles was a member of a society in which wergeld was a recognised penalty. It is significant also that Achilles, in his reply, makes no reference whatsoever to this argument. Viewing Homer as a whole, it seems more than probable that this almost solitary instance of wergeld was introduced by the poet, who[30] was aware of the existence of the wergeld system, but was not concerned with its details. We need not call attention to the non-factual nature of recorded speeches even in Greek prose writers, and a fortiori in the epic poets who reconstructed speeches more or less as a historical novelist would at the present day. It is in a similarly casual way that Homer gives us his one solitary reference to a common tillage field[31]—a reference which Ridgeway makes a basis for very wide generalisations as to Homeric land-tenure. No Achaean uses the words: they are the poet’s own: hence they can easily be applied to conditions of tenure with which the poet was himself acquainted, but which were not necessarily adopted by the Achaeans during their domination in Greece. In regard to the wergeld passage, Glotz suggests that, while the verses themselves would lead one to suppose that a certain ‘superior force’ constrained the kinsman of the victim to forgo blood-vengeance by accepting a blood-price, still they do not prove that there was any ‘social justice’ to intervene and impose a settlement or to indicate the amount of the wergeld.[32] This view we cannot accept. There is no explicit[33] reference, of course, to any ‘social justice,’ but the temperament which forgoes blood-vengeance and accepts wergeld is the product of a social system which restricts and controls the human passion for revenge. The Achaeans were above and outside such a system: the Pelasgians, we think, were born and bred in it,—perhaps for centuries. Allegiance to his tribal or civic unit and its laws alone could restrain primitive man—especially in Southern climes where passion dies very hard—from following the promptings of his natural blood-thirst. In course of time individual members of a settled agricultural tribe would inevitably develop a restrained temperament, through their fear of violating those unwritten laws of which Antigone said[34] that they ‘are not of to-day or yesterday, but no man knows the time which gave them birth.’ The Achaeans, who lived in every-day contact with such types of men, must have observed even though they did not imitate their self-restraint, and all the more because it was a quality which the Achaean caste-atmosphere could not produce.

The second of the two genuine wergeld passages in Homer is found in the description of the Shield of Achilles.[35] This passage raises many problems and causes serious difficulties to Homeric scholars. Ridgeway, who holds that the Achaean shield was of a round shape, and who assumes that the Shield of Achilles was therefore round, still finds nothing in Homer’s description to suggest that the Achaeans manufactured this particular shield. ‘It is probable,’ he says,[36] ‘that whilst the shape of the shield and the style or ornament are derived from central Europe, its technique discloses the native Mycenaean craftsman employing for his Achaean lords the method seen in Mycenaean daggers.’ Monro[37] also points out that ‘in choice of subjects and in the manner of treatment there is a remarkable agreement between the Mycenaean remains and the Shield of Achilles.’ All the pictures, he observes, are taken from incidents of every-day life, and the absence of any references to commerce or seafaring life suggests the antiquity of the picture.[38] Leaf, in his translation of the Iliad (1883),[39] makes the following comment: ‘The whole passage is clearly archaic, but the difficulty lies in the fact that no parallel, so far as we know, is to be found in the procedure of any primitive races which throws any light upon this passage. Homer so constantly represents the kings as the keepers of the “traditions,” and therefore sole judges, that he must have been consciously moving in some different world when he depicted the Shield: a world, too, in which there is no mythology and no sacrifice and nothing distinctly Hellenic.’ In his Companion to the Iliad[40] (1892) and in his latest edition of the Iliad (1902) he has proposed a solution[41] of the problems raised by this passage. He suggests that the passage does not refer to a murder-trial, nor yet to an inquiry into the question of payment of wergeld (as he held in his translation[42] of the Iliad), but that it is an account of the establishment of a new murder-code, which abolishes private vendetta and substitutes a compulsory ‘wergeld’ system. We will now quote the portion of this famous passage which relates to homicide—and we will offer a solution of the difficulty.

On the Shield are depicted, amongst other things, two cities, one of which is in a state of siege, the other in a condition of peace. It is with the latter city that we are here concerned. In this city two ‘events’ are described: the first is a wedding, concerning which we need only say that it is an event of common occurrence, which is not in the least degree novel or abnormal; the second event[43] is a dispute about the ransom of a slain man, which takes place in the ἀγορά of the city, in the presence of the Elders, of the sacred heralds, and of a cheering crowd of people. Leaf’s original translation (1883) (some of which he has since abandoned, not, as we think, wisely) is as follows: ‘But the folk were gathered in the assembly-place; for there a strife was arisen, two men striving about the blood-price of a slain man: the one avowed that he had paid all ... but the other denied that he had received aught, manifesting it to the people: and each was fain to obtain consummation on the word of his witness[44]: and the folk were cheering both, as they took part on either side. And heralds kept order among the folk, while the Elders on polished stones were sitting in the sacred circle and holding in their hands staves from loud-voiced heralds. Then before the people they rose up and gave judgment each in turn. And in the midst lay two talents of gold to be given unto him who should plead among them most righteously.’

This is the traditional view, which regards the scene as an investigation by the Elders of the city as to whether a recognised wergeld has or has not been paid. It is followed by Glotz, who proposes however some curious explanations of details, which we shall presently discuss. It is the view which we shall adopt when we have explained more precisely the exact nature of the ‘court.’

There is however a second view, adopted by Leaf in 1887, 1892 and 1902, first propounded by Müncher (1829), and supported by other scholars,[45] which regards the scene as describing the first interference on the part of some higher authority with the chaotic blood-feuds of savages.

Thirdly, there is the view of Lipsius that the trial was a genuine murder-trial, and that the two talents of gold referred to by the poet represented a genuine wergeld. This view is now generally rejected and we shall see presently the objections which militate against it: but our first duty is to formulate the arguments which will induce us to accept the first and to reject the second hypothesis.

First of all, we have already protested against the opinion which represents the early Greeks as cannibals living in a state of barbarism. In our view, the only period of Greek history to which such a conception may, with any justice, be applied is the period of the Dark Ages which succeeded the Trojan war, when continual migrations and the breakdown of tribal solidarity gave a temporary reality to the picture which is drawn for us by Hesiod. The Pelasgian, Minoan, and Achaean periods, however, present to our minds societies enjoying a civilisation which was regular and orderly, and a culture which was real and distinctive, even though it was also primitive. Again, the arguments which Leaf bases on the linguistic interpretation of one or two verbs in this passage are not only inconclusive for his hypothesis, as Glotz rightly holds,[46] but suggest, we think, the opposite deduction. In 1883 Leaf translated the words ὀ μὲν εὔχετο πάντ’ ἀποδοῦναι ... ὁ δ’ ἀναίνετο μηδὲν ἑλέσθαι as ‘the one avowed that he had paid all ... the other denied that he had received aught’: but in his latest edition of the Iliad (1902) he translates them (to suit his changed hypothesis) thus: ‘the one offered to pay all ... the other refused to accept aught.’ He admits, of course, that the verbs can have the meaning which he gave to them in 1883. But he omits to note the solitary word πάντα which we consider a decisive factor. If a man is said to ‘pay all’ surely that ‘all’ must have been a sum fixed by a traditional arrangement. We can find no parallel, in wergeld-paying communities, for a judicial decision on the part of the tribe which compels a relative of the victim to accept the wergeld which the tribe of which he is a member has traditionally recognised as the complete payment of the debt. It is only if payment is in default or dispute that the tribe would assert itself to prevent a feud of blood. When Homer adds, after the clause ὁ δ’ ἀναίνετο μηδὲν ἑλέσθαι, the words δήμῳ πιφαύσκων, surely this means ‘declaring it to the people’ rather than ‘manifesting it to the people,’ for it is absurd to suppose that the actual wergeld was included in the scene, since such a payment, as we have shown, usually consisted of cattle and sheep.

Again, we may mention what we consider a very serious weakness in Leaf’s later position. He has to assume that the scene in question is not a single scene, but two scenes. He thus describes the affair in his Companion to the Iliad[47] (1892). ‘A man has been slain: the homicide has offered a money payment in commutation of the death, but the next of kin refuses to accept it. Both parties come into the public place attended by their friends and dispute. This scene ends here. The next scene shows us the dispute referred to the Elders, the King’s Council, who are to decide what course is to be taken. The importance of this double scene lies in the fact that it shows us criminal law in its very birth. No criminal law can be said to exist when it is a matter for private arrangement between the homicide and the next of kin to settle the offence, if they like, by a money payment, instead of by the normal blood revenge, which means the exile of the homicide if he is not killed. But criminal law begins when the people claim to have a voice in the question and to say that the money shall be accepted.’ We will merely say, by way of comment, that this two-scene theory not only is artistically improbable but finds no support whatever in the text of Homer.

A period of thirteen years separated the date of the Companion from that of the publication of Homer and History. Though in this latter work he does not mention the Shield of Achilles, still we feel that if Leaf had applied his later theory of the distinction between Achaeans and Pelasgians to the solution of his earlier problem, he could have thrown considerable light on the question. In 1883 it was the absence of a king in the trial that troubled him. But is it not now clear that the ‘Kings’ of Greece from 1300 B.C. to 1100 B.C. were Achaeans, bellicose war-lords, who held in their hands the ‘sceptres’ and dealt out dooms to the people, but who took little interest in local disputes, who did not understand, perhaps, and probably did not adopt, many of the Pelasgian ‘dooms’?[48] Hence, if we suppose that the Elders in this scene are not Achaeans but Pelasgian chiefs of clans and tribes, we can quite easily understand the absence of the Achaean king or over-lord.

Leaf gives us a very clear picture in Homer and History[49] which we may utilise to remove the difficulties which he felt in 1883. ‘All this time,’ he says, ‘the main population of Greece was going on with beliefs and customs undisturbed, unaffected by the change of masters[50] at the Castle. The group society of the Pelasgians—φυλή, γένος, φρατρία—continued intact, abiding its time. The epic of the Achaeans takes no notice of it, why should it? The Achaeans knew little and cared less about the customs of their subjects, unless at times called in to settle disputes based on silly family usage, unworthy of a lord’s notice.’ Though Leaf does not say so explicitly, we think that in his conception of the Homeric wergeld he is now much nearer to the position he held in 1883 than to the positions he adopted in the intervening period.

If we combine then the arguments based on the text of this Homeric passage with the results of Leaf’s latest researches and also with the general principles outlined in our Introductory Chapter, we may conclude that this trial-scene presents us with a genuine wergeld dispute, not within the Achaean caste, but amongst the Pelasgian tribal folk. We have seen that scholars are unanimous in holding that the Shield is of an essentially Mycenaean and therefore Pelasgian pattern. We have quoted Seebohm at length for the connexion between the wergeld-system of homicide-compensation and tribal organisation and control.[51] We have quoted Leaf’s recent views as to the probable existence of clans and tribes among the Pelasgian subject-people. The conclusion we have drawn is therefore a practically self-evident deduction from assumed premises.

Before we apply this general conclusion to the solution of minor difficulties presented by this Homeric passage, it may be desirable to discuss briefly the view of Lipsius which has been already mentioned. He maintains that the trial in question was a murder-trial—a decision of homicidal guilt or innocence: he therefore holds that the two talents of gold were the actual wergeld. He says[52]: ‘Upon him (of the claimants) who, according to their (i.e. the judges’) opinion—at any rate in the verdict of the majority—has given his opinion best, are bestowed two talents of gold which have been laid down in front of them. They (i.e. the talents) constitute, therefore, the objects of the dispute, the amount of the blood-atonement which the accused deposits and is to get back in case of victory,[53] but otherwise must transfer to the plaintiff.’ This opinion has been attacked on many grounds, but chiefly on the ground that the sum of two (Homeric) talents of gold is too small to constitute a wergeld-payment.[54] But it does not follow that the Achaean standard of values was necessarily that of their Pelasgian subjects. Even though it is true that in Homer a goodly price is paid for a freeman sold as a slave[55]; for a woman[56]; and for the ransom of the kidnapped son of a king[57]; although a ‘ransom unspeakable’ (ἀπερείσι’ ἄποινα) is offered for a warrior’s life on the field of battle[58]; and Lycaon, son of Priam, is kidnapped and sold as a slave for 100 oxen and liberated by a ransom of 300 oxen[59]:—although ten talents of gold is an insignificant portion of the ‘placation’ offered to Achilles,[60] and two talents of gold is the reward paid by Aegisthus to his scout,[61] there is nothing in all this to prove that, amongst the poor tribal tillers of the soil, the sum of two talents of gold (which, though it was not real money, was still a valuable commodity) may not have sufficed as wergeld for a tribal race ruled over by strangers. The really insuperable objections which we find to the view of Lipsius are the following: In the first place tribal wergeld, even where it is comparatively small, as it was in Ireland under the Brehon Laws, is generally a collection of numerous valuables, whether cows or sheep or slaves. Even when money is substituted, the coins are small in value but numerous[62] (e.g. 200 solidi, 400 argentei). The reason for this lies in the diffused nature of the responsibility for payment, quite a number of families and individuals of the wider kindred being liable to contribution. Secondly, there is no parallel, in analogous instances of wergeld, for the assumption that the total amount was collected and deposited in court at any time, much less before the validity of the murder-charge had been established. In this case, the accused asserts (according to Lipsius’ translation) that he had paid the whole sum: but surely ἀποδοῦναι cannot be taken to mean ‘that the accused had deposited in court the normal wergeld.’ How could the accused assert that he had paid it, how could the plaintiff deny that he had received it—if the actual wergeld were deposited in court before their very eyes? Thirdly, to say that the two talents would be given to the most convincing pleader is a very strange way of describing a judgment of guilty or not guilty on a charge of homicide. Thus the text of Homer refutes the theory of Lipsius. Maine[63] indicates the real function of the two talents in this court by showing that they served the same purpose as the sacramentum or court-fee of Roman law.

Assuming then that the court here described by Homer was a group of Pelasgian tribal chiefs or elders who could regularly be appealed to in such disputes, and who would also perform the functions of a murder-court if any person accused of homicide appealed to them to establish his innocence, we shall conclude our discussion by clearing up some minor points of difficulty.

We cannot concur with Glotz[64] in the opinion that the result of the verdict is a matter of life or death for the murderer. He says ‘Il peut y avoir un jugement de condamnation entraînant l’esclavage ou la mort.’[64] But quick justice is not a characteristic of the wergeld-exile-slavery-death system. We have seen how[65] among the Welsh tribes wergeld was paid in fortnightly instalments: and we may suppose that failure to pay any one instalment would have been a common subject for litigation. In the laws of King Edmund of England (A.D. 940-946) a period of twelve months[66] was allowed for payment of wergeld—‘to prevent manifold fightings.’ In the laws of Henry I. the period was fixed by ‘Sapientes.’

Again, in this Homeric passage as it is usually interpreted, both pleaders cannot have been right. Payment of wergeld was very different from a modern transfer of cash. It involved a complete readjustment of the whole property of two clans, so that hundreds of people were aware of the transaction. If however we suppose that a portion of the wergeld was unpaid, it will be possible to maintain that both parties were bona fide in their assertions. We will assume that Homer, whether he is indulging his imagination or describing something which he had actually seen on a shield, is giving us an account of a typical wergeld dispute such as must commonly have taken place in Pelasgian life: we must especially remember that the accused (whom we assume to be the murderer) and the plaintiff are isolated members of large groups concerned in the payment, though the accused would normally have to pay the greatest individual share, and the plaintiff, if he was the nearest relative of the slain, would receive a large share of the wergeld. Let us suppose, then, that some of the wergeld had been paid, and that the part which had not been paid was due, not from the murderer himself or his immediate relatives,[67] but from some distant family of cousins who, unknown to the defendant, had defaulted or were unable to pay. We can, on this assumption, credit the defendant (that is, the murderer) with bona fides. Or again, assuming still that the defendant is the murderer, if we suppose that the disputed ‘instalment’ had been received, unknown to the plaintiff, by a distant family of his wider kindred for whom he is acting as the leading ‘avenger’ in negotiation—in a word, if we suppose that both litigants are acting as representatives of large groups, we can understand the contradiction in their statements which would be less intelligible if they were speaking for themselves personally. And have we not here a clue as to the constitution of the crowd which attended at the trial? Homer distinctly says that the crowd ‘cheered on both parties’[68]: and he adds: ‘taking part on either side’[69]: so interested were they in the issue, that the heralds had to maintain order.[70] This implies that there was a certain danger of rioting amongst the crowd—of something like the ‘manifold fightings’[71] of the Anglo-Saxons.

We cannot agree with the general view that this scene must be expected to contain a picture of intense public interest.[72] The parallel scene, in the city at peace, is a wedding! The Shield-picture contains also a reaping scene and a ploughing scene. Surely the artist was not so much at pains to reveal subjects of public interest as to depict topics of common occurrence. To us it seems obvious that one of the most frequent scenes of tribal life was a wergeld dispute: and as this dispute concerned the property of a large number of people, all such persons would be naturally interested in the verdict. In all ancient codes prominence is given to laws relating to theft, to inheritance, to marriage settlements and the like, rather than to what we should now consider graver matters. The reason is, that all ancient thought and religion centred around questions of property. Hence we think it more than probable that the ‘folk’ of the Homeric trial scene are not the general public but are rather the wider kinsmen of the plaintiff and the defendant. It would be not only natural but also right that they should have supported each one his own side, just as they would do in the event of a clan feud. But the success with which the heralds checked the passions of the people shows how very different the ancient Pelasgians were from the barbarous races who only accept wergeld under duress, and who hail with triumph the slightest pretext for another feud. Glotz, who thinks of the Pelasgians as he would of any barbarous primitive people, thinks therefore that in this scene the crowd came together armed to the teeth! ‘Les hostilités, un instant suspendues, menacent d’éclater à nouveau. Les deux ennemis qui déjà se résignaient mal à une transaction, échangent des injures, en attendant qu’ils se cherchent les armes à la main.’[73]

What now, we may ask, is the meaning of ἴστωρ in this passage? Homer says:

ἄμφω δ’ ἱέσθην ἐπὶ ἴστορι πεῖραρ ἑλέσθαι.

Leaf, in 1883, translated thus: ‘and each one was fain to obtain consummation on the word of his witness.’ Later (1892 and 1902), when he conceived that there were really two scenes described in the picture, he regarded the ἴστωρ as an arbitrator: ‘each one relied on an arbitrator to win the suit.’ We can only say that while the etymology and use of the word ἴστωρ permit of both interpretations, the relation of the verse to its context seems to us immeasurably in favour of the interpretation ‘witness.’ We may presume that the ‘witnesses’ were included in the ‘people’ and were brought forward to prove the actual transference of property which had or had not taken place. They are, therefore, similar to the ‘compurgators’ who figure so prominently in medieval litigation.[74]

Since Homer, then, the poet of the Achaeans, has given us only two incidental references to wergeld, we are not surprised that he has told us nothing about the details of the system. We may indeed infer that the amount payable was very large,[75] but Glotz reveals how little he is himself acquainted with the system when he asserts[76] that the offender only escaped death at the cost of ruin. ‘La ποινή,’ he says, ‘c’est une large, parfois peut-être une totale dépossession de l’offenseur au profit de la partie lésée. A la mort juste on n’échappe que par la ruine.’ It is probable that the payment took the form of ‘women, cattle, or horses.’[77] But in the absence of more definite evidence[78] we must fall back on what we can learn from analogous instances. It is for that reason that we have discussed at so much length the wergeld system in our introductory chapter. We have no doubt that the wergeld revealed by Homer was a genuine wergeld, and not a mere clumsy device for terminating the feuds of savages exhausted by slaughter.

We must now search further, in the text of Homer, for anything he may have to tell us of other alternative penalties existing amongst the Pelasgian people. In this matter we cannot trust to the analysis of Glotz, for he knows of no distinction between Achaeans and Pelasgians, and hence his account is misleading.

We may say at once that we cannot find any genuine Pelasgian reference to the death penalty as an alternative, in cases of homicide outside the clan, though from other analogies and, indirectly, from Homer[79] we may infer that the option was valid.

It is also doubtful if we can detect any genuine instances of slavery as a penalty for homicide. Glotz calls attention[80] to a very curious custom which is found among some primitive peoples, the custom of compelling a murderer to have himself ‘adopted’ by the ‘family’ of the victim. The murderer takes the place of the dead man! Among the Ossetes ‘a mother does not hesitate to recognise as her son the man who has deprived her of her son’—but this adoption does not give him a right to succeed to property. Glotz[81] thinks it more than probable that the same custom prevailed in the Homeric epoch, for he regards wergeld as a kind of debt, and slavery was a universal solvent of debt down to the time of Solon, by whom it was still permitted in the case of a daughter who was guilty of misconduct (prise en faute).[82] The offer of a daughter in marriage by Agamemnon to Achilles, in an age when men bought women as venal chattels, Glotz regards as a species of wergeld (ποινή).[83] He quotes[84] Apollodorus[85] for the eight years ‘captivity’ of Cadmus with Ares whose son (the dragon) he had murdered—after which Ares gave him his daughter in marriage.[86] For having massacred the Cyclopes,[87] Apollo became a shepherd in the service of Admetus.[88] Heracles, having slain Iphitus, serves Omphale for three years.[89] The only Homeric reference which Glotz mentions is a passage[90] which describes the year’s service of Apollo and Poseidon with Laomedon for a sum of money, at the command of Zeus: they built the walls of Troy, but Laomedon refused to pay their wages. As there is here no question of murder, we may say that there is nothing relevant about this Homeric passage.[91] Nor can we attach any weight to legends presented by Apollodorus, for, as we shall see, the abolition of wergeld in the seventh century B.C. made exile the inevitable penalty for murder and left the murderer no property to take away with him, and therefore he had little option but to accept menial service with a stranger.

If we reflect on the nature of the wergeld system, we shall see how difficult it would be to apply a penal form of slavery in default of payment within a tribe or in any definite locality. Wergeld was essentially a ‘diffused’ penalty, involving a large number of debtors, any one of whom could, equally with the murderer, be sold as a slave at the command of tribal authorities. To enslave a distant relative[92] of the murderer for debt would constitute a severe form of collective punishment: and it is much more probable that, in default of payment on the part of any individual family, the deficiency would have been contributed by the rest of the clan.[93] It is improbable that an entire family or gwely would have been so poor and needy that they could not by a series of instalments have discharged the wergeld debt. In a law of Henry I. it is decreed[94] that ‘Amends being set going (i.e. first deposits being paid) the rest of the wergeld shall be paid during a term to be fixed by the Sapientes.’ And we must not ignore the role of the phratores, or of the congildones, who were selected from neighbouring clans, and who might have to contribute in certain emergencies. Thus, in another law of Henry I. we read[95]: ‘If the slayer has no maternal (or paternal) relations the congildones shall pay half, and for half he shall flee or pay.’ In ancient tribal Ireland an instance of bondage is related in the Senchus Mor,[96] but failure to pay occurs only in the case of an illegitimate son, who would normally have no real share in family property. There is here, indeed, a sort of ‘collectivity.’ Six men of the tribe of Conn of the Hundred Battles, including four brothers and an illegitimate nephew, had slain a brother who was under the protection of another tribal chieftain. A compensation was demanded, which is not so much wergeld as a fine payable to the chief. Five of the six men were able to pay, but the illegitimate murderer could not pay: so his mother was handed over to the tribe as a bondwoman in pledge. However, the fact that the slain man had been adopted by an outside tribe, and that the money was paid to the chief, forbid the conclusion that money was paid for murder within the kindred in tribal Ireland or that kin-slaying was normally atoned for by bondage in the family of the victim.

It may be urged that slavery was accepted as an expiation of manslaughter within the kindred on the ground that wergeld was impossible, that death was too dreadful, and that perpetual exile or outlawry was too severe a punishment. It is obvious, from the very nature of the case, that wergeld cannot apply to bloodshed within the clan or the wider kindred. Seebohm has found no instance of such a penalty amongst the tribes whose customs he has investigated. He points out that ‘if it (i.e. the murder) was of someone within the kindred, there was no slaying of the murderer. Under Cymric custom there was no galanas (i.e. wergeld), nothing but execration and ignominious exile.’[97]... ‘There is no feud within the kindred when one kinsman slays another. Accidental homicide does not seem to be followed even by exile. But murder breaks the tribal tie, and is followed by outlawry.’[98] ‘Tribal custom everywhere left the worst crime of all—murder of a parent or kinsman—without redress, ... unavenged.’[99] Glotz, also, holds that there was no drastic punishment for bloodshed within the clan: ‘Rien qu’un parent fait contre un parent n’est susceptible de châtiment.’[100] But the graver crimes against one’s kindred are penalised, he says, by exile:—‘La peine la plus grave qui soit ordinairement infligée ... c’est l’expulsion de la famille.’[101] We believe that in all clans which worshipped ancestors kin-slaying was usually punished by exile, perpetual or temporary. In a later chapter, when we come to discuss the survival of primitive clan-customs in historical Attica, the grounds for this belief will become apparent. At present we will merely say, with Fustel de Coulanges,[102] that kinsmen would not encourage the presence of a kin-slayer as a slave in daily intercourse with his clan, nor would they easily permit him to take part, at least for a time, in the worship of the family hearth—of the clan ‘fire’ which he by his act had to some extent extinguished.[103] We prefer to see him, as Glotz[104] describes it, stripped naked, and escorted to the clan boundaries, beaten and insulted, declared an outlaw for years or for ever for treason to his blood. Later, we shall see[105] that when Athenian State-magistrates are charged with the execution of the sentence of death, the kin-slayer may no longer escape, and his clan will refuse to have his corpse ‘gathered to his fathers.’ It was thus that the King of the Wisigoths commanded the judge to punish with death the kin-slayer who in the system of ‘private vengeance’ saved his life by becoming an outlaw from his clan.[106]

We find a reference to the exile penalty for kin-slaying in Homer.[107] We are told that Tlepolemus, son of Hercules by Astyocheia, came to Troy from Rhodes, whither he had fled, because when grown to manhood he had slain his father’s maternal uncle, an old man, Likymnius, of the stock of Ares. ‘Then with speed he built ships and gathered much folk together and went fleeing across the deep, because the other sons and grandsons of the mighty Hercules threatened him.’ So he came to Rhodes, a wanderer, and his folk settled by kinship in three tribes and were loved by Zeus.’ Leaf would probably regard this passage as non-Homeric, since it happens to occur in the ‘Catalogue’: but this will not vitiate our argument, as the predominant atmosphere of post-Homeric Greece was, in Leaf’s view, that of the ‘group-system’ and there was no break in the custom of tribal wergeld. We may assume[108] that the family of Hercules was Pelasgian. Homer does not mention the place where the slaying took place, but it was, possibly, Mycenae, of which Electryon, father of Likymnius, was at one time king. Likymnius was a half-brother of Alcmene, the mother of Hercules, whose birth, according to Homer,[109] took place at Thebes. Likymnius was, therefore, a maternal uncle of Hercules and grand-uncle of Tlepolemus. In a normal clan the avengers of Likymnius must have included the brothers of Tlepolemus, since the homicide affected the whole kindred-group. The case is remarkably similar to that described in Beowulf, and referred to by F. Seebohm,[110] but Beowulf took no part in the quarrel between his maternal and paternal kindreds and the quarrel was in violation of tribal usage. This is precisely the kind of event which would have tested to the utmost the solidarity of the kindred; for there was a clan law that all the members who were akin either paternally or maternally had to act together in the avenging of a kinsman. The murder of Likymnius—who was not a kinsman of Amphitryon, grandfather of Tlepolemus, but who was akin to Hercules, to Tlepolemus and the brothers of Tlepolemus—was a crucial test, as it involved a conflict between loyalty to clan law and loyalty to one’s nearer relatives. When Homer speaks of the avengers of Likymnius as the ‘sons and grandsons of the mighty Hercules,’ it does not follow that the family of Hercules were the sole avengers, but that, as the nearest relatives of Tlepolemus, their action was the most important, seeing that they were the kinsmen whose obedience to clan law was most difficult and, therefore, most appreciated.

Glotz[111] does not seem to us to have rightly interpreted this passage. He refuses to believe that the duty of vengeance was so strict as to compel a man to exercise it against a relative of the paternal line, in the interest of a victim of the maternal line. Moreover, he argues that the sons of Hercules are not the avengers of Likymnius, for, if they were, they would not have allowed him to depart. Here, we believe, Glotz is confusing the exile penalty of Pelasgian tribes with the Achaean exile, which was a flight from death. They let him go, says Glotz, because they wish to avoid a feud within the clan—‘Ils veulent seulement que le meurtrier s’en aille, parce qu’ils entendent ne pas se brouiller avec des alliés.’[112] We think, on the contrary, that the case of Tlepolemus furnishes a splendid instance of the solidarity of the clan. There was no question of wergeld—nor, we think, of slavery. It was a question of exile or death. The brothers of Tlepolemus appear to lead the avengers. From this we need not infer that Likymnius, an old man, had no sons or grandsons or brothers living at the time. We have said that a clan conflict was averted by the decision of the sons of Hercules to join in avenging. Rather than tolerate in the clan society, in the worship of common ancestors, the slayer of a kinsman, the brothers of Tlepolemus would, if necessary, have killed him. It is with death that they threatened him, if he remained. But his exile was not a flight from death: he was granted a certain time in which to build himself ships. Such delay is characteristic of Pelasgian but not of Achaean vengeance. There would be some difficulty in interpreting the reference to the people whom he carried with him into exile, were it stated, as fortunately it is not, that they were his kinsmen. His companions were hangers-on, lackland men who were content to join a powerful ‘exile’ emigrant. He founded in Rhodes a city, in typical Pelasgian fashion,[113] dividing the folk by kinship into three tribes. It is perhaps because he was a son of Hercules that his exile appears to be no excessive penalty but a mere inconvenience. It is perhaps for the same reason that he was loved by Zeus, the father of Hercules.[114]

For the Pelasgian penalty of exile as an alternative to wergeld for homicide outside the kindred, the most relevant, though indirect, Homeric reference is a passage in the Iliad[115] which we have already discussed, in which we hear of a man-slayer who abides among his people when he has paid a goodly wergeld. We have already argued that this passage refers to the tribal customs of the Pelasgians, and that the Achaean Ajax, who uses the words, is borrowing, for rhetorical purposes, a sentiment which did not characterise the Achaean attitude to homicide.[116] We may now point out furthermore that the vagueness of the description of the wergeld payment, both in this passage and in that which relates to the Shield of Achilles, suggests, if it does not prove, that the description proceeds from Achaeans who were not familiar with the details of the system, but had merely become acquainted with its outstanding principles. When Homer says ‘a man has been known to accept a blood-price for the death of a brother or a son,’ the statement is only a vague description, as anyone who is familiar with real wergeld will admit. We have seen that a large number of people participated both in the payment and in the satisfaction. Whether Homer can be taken to mean that exile would have absolved the murderer’s kindred from all payment, as it did in the laws of King Edmund of England,[117] or whether it merely acquitted the murderer of his share of the debt,[118] are questions which, owing to the vagueness of our Homeric references, cannot here be decided.

These are the only Homeric references to the exile penalty for homicide which can be definitely associated with Pelasgian customs. There is a passage in the Odyssey[119] in which the penalty is referred to, but we think it wiser to interpret the passage as an Achaean reference, and to regard the exile as a flight from death. Odysseus, having slain the suitors—an action characterised by arbitrary Achaean hypervengeance—urges his son Telemachus to consult with him and take joint measures to prevent retaliation from the relatives of the slain. He says to Telemachus: ‘A man who has slain a single individual amongst the folk (ἐνὶ δήμῳ) goes into exile and leaves his connexions and his native land, even when the slain man has not many “helpers” left behind: but we have slain the mainstay of the city, those who were noblest of the youths in Ithaca, so I bid thee take thought upon the matter.’ The outlook of the Achaean over-lord is clearly indicated in this passage, in the importance which Odysseus seems to attach to the numbers or military strength of the avenging relatives. For the Achaeans, murder went unavenged if there were no avengers or if the avengers were not sufficiently powerful to retaliate. Blood was rarely shed in vengeance, because the murderer usually fled and took precautions against pursuit. The idea of fleeing when the fear of ‘reprisals’ was negligible was not very intelligible to an Achaean, and it is mentioned here as an instance of unusual caution, in order to emphasise the danger for Telemachus and Odysseus who remain unprepared at home surrounded by a host of powerful and hostile Ithacans. Later on, Odysseus suggests that music and dancing should resound in the house to prevent the rumour of the slaughter being disseminated until he has time to prepare his plans.[120] When, eventually, the truth became known, the relatives of the suitors took counsel together,[121] in the manner of an Achaean council of war, but not as a Pelasgian clan or tribe assembled to judge of guilt or innocence. Some said that Odysseus was justified in his act; others prepare for war. The fight ensues, and many are slain.[122] Athene[123] intervenes to reconcile the feud; she acts not as the patron of clan law but as the symbol of Achaean military discipline. Odysseus does not depart into exile: the covenant which the outraged relatives submissively enter into came from the throne of Zeus, and pledged them to serve the king for all his days.[124]

Neither can we put forward as evidence for the Pelasgian exile penalty for homicide the passage in the Iliad[125] in which Priam’s inexplicable appearance before Achilles and his friends evokes in them an emotion which Homer compares to the amazement (θάμβος) felt when a man ‘slays one in his country and goes into exile to the house of a rich man[126] and wonder possesses them that look at him.’ The amazement here described would be equally natural whether the stranger was an exiled Pelasgian or, as Leaf suggests,[127] an Achaean fleeing for his life. Moreover, suspicion has been thrown upon the whole passage by the reference, in two scholia, to ‘purification,’ which has led Müller[128] to infer that the scholiasts read, in their texts, ἁγνιτέω instead of ἀφνειοῦ. We hope to show later[129] the error of Müller’s view that purification for homicide was a characteristic of the Homeric age, and hence we maintain that either the whole passage is a later interpolation or that the reading ἁγνιτέω found its way into some Homeric texts from a marginal gloss of post-Homeric origin, suggested by a false interpretation of the word ἄτη in a preceding verse.

Hence, while the poems of Homer indicate beyond reasonable doubt the existence of a genuine Pelasgian exile penalty, it is significant that the poet of the Achaeans tends to ignore the exile[130] alternative as he tends also to ignore the wergeld alternative, in the system of penalties for homicide adopted by a tribal people outside the Achaean caste.

Voluntary and Involuntary Homicide

It is generally[131] asserted that primitive societies recognise no distinction either between wilful murder and manslaughter (which presumes a certain degree of guilt), or even between wilful murder and accidental slaying. The reason assigned is that bloodshed, even in comparatively advanced civilisations, is a ‘civil’ rather than a ‘criminal’ offence—a matter for damages and compensation rather than for exemplary punishment. Thus Glotz[132] says: ‘L’intention n’est rien: le fait est tout. Pas de circonstances atténuantes. Nulle différence entre l’assassinat lâchement prémédité et l’homicide involontaire.’ To the possible objection that the distinction is found in Greek legends, as given by Aeschylus, Apollodorus, Pausanias and others, he replies that these legends are of late origin—a view which is not quite consistent with his usual attitude.[133] He thinks that those legends were invented by the Athenians to restore the history of the Areopagus, the Palladium, and the Delphinium courts.[134] He attributes the moral distinction, which these courts are assumed to imply, between voluntary and involuntary homicide to a period ‘not much anterior to Dracon,’ but he admits that the idea was being developed before that time in ‘family law’—that is, in clan justice. He seems to us rather inconsistent in holding that ‘dans les lois sur l’homicide (de Dracon) apparaît pour la première fois la distinction du meurtre prémédité et du meurtre involontaire,’ and in maintaining at the same time that it was a ‘principe lentement élaboré dans la justice sociale.’[135] The distinction was developed, he thinks, not from any philanthropic motives but only because private vengeance was abolished and the newly established power of the State sought thereby to restrain the taste for blood. Now we may admit, with Glotz,[136] that the distinction is a late development in most races whose social customs are known to us—for instance, amongst the Germans, the Slavs, the Celts, the Scandinavians, and the Ossetes. France does not seem to have recognised the distinction in its written laws before A.D. 819. In feudal England it does not make its appearance before the time of Henry VIII.[137] But Seebohm[138] shows that in the Lex Wisigothorum (about A.D. 650) ‘a homicide committed unknowingly (nesciens) is declared to be ... no cause of death. “Let the man who has committed it depart secure.”’ The introduction of Roman law may have caused this innovation, for Roman law admitted the distinction from the time of the Twelve Tables[139] onwards, and this code was still operative amongst Gallic peoples when they were conquered by the Wisigoths.[140] From Beowulf, however, Seebohm[141] infers that in Scandinavia within the clan ‘accidental homicide does not seem to be followed even by exile.’ The poem says[142]: ‘Hæthcyn by arrow from hornbow brought him (Herebeald) down, his near kinsman. He missed the target and shot his brother. One brother killed the other with bloody dart. That was a wrong past compensation.... Any way and every way it was inevitable that the Etheling must quit life unavenged.’ In this case, of course, there could be no question of wergeld.

In the ‘Canones Wallici’[143] (Celtic laws of the period A.D. 700-800), which are based on the tribal wergeld system as adopted by the Church, we find this clause: ‘Si quis homicidium ex intentione commiserit, ancillas III et servos III reddat.’ This implies a different penalty when murder was not ex intentione.

The Brehon laws[144] contain minute distinctions of payment in different cases of wounding. If a bishop’s blood was shed in certain quantities, the guilty person had to be hanged or to pay seven cumhals (slaves)—or their equivalent in silver and gold: if a less quantity of blood was shed, the aggressor was condemned to lose his hand. If the blood of a priest was shed in certain quantities, the criminal’s hand was cut off or seven ancillae paid, if the act was intentional; if it was not intentional, one ancilla sufficed for compensation. It is clear then that this distinction is not always absent even in a wergeld system where the crime of bloodshed is particularly objective. We have seen[145] that wergeld often carried with it an ‘honour-price,’ an atonement for the insult, which was caused by homicide. This price, it seems to us, could easily admit of a modification of the penalty. Moreover, it is possible that wergeld is not always to be regarded as a measure of the loss sustained by a clan, but as also to some extent a ransom of the prisoner’s life. ‘Partout,’ says Glotz,[146] ‘la composition varie selon le rang de la victime: et selon le rang du coupable: elle est à la fois la rançon du meurtrier et le prix du sang versé.’ For the Germans, according to Coulanges,[147] ‘la composition est un rachat, non pas rachat de la victime mais rachat de la vie du coupable.’[148] Is it not natural to suppose that a system of compensation for homicide which contains such minute differentiations would leave the road open for a discrimination as to degrees of guilt?

It is time to ask whether Homer has anything to say of this distinction. We will admit that he says nothing which is directly relevant to the question. But we will examine two passages with a view to showing that the distinction was known outside the Achaean caste.

The first passage is from the Odyssey[149] and is concerned with King Oedipus the parricide and with his punishment. Odysseus narrates how, in Hades, he saw Epicaste, and how ‘he that had slain his father wedded her and straightway the gods made known these things to men. Yet he abode in pain in pleasant Thebes, ruling the Cadmeans, by reason of the baneful devices of the gods. She indeed went down to Hades ... but for him she left behind many a woe, such as the Erinnyes of a mother bring to pass.’ Of all forms of homicide, that by which a son deprived a parent of life was regarded as the most horrible. Probably even the Achaeans, as we shall see presently, felt a certain horror at the thought of parricide. Homer, then, cannot understand why the gods, who had taken the trouble of revealing the crimes of Oedipus, nevertheless permitted, if they did not encourage, his continued rule over the Cadmeans. All other parricides of whom Homer had ever heard had taken to flight! And what was the pain which Oedipus endured? Was it remorse of conscience? Or was it his self-inflicted blindness? Euripides[150] tells how the sons of Oedipus confined their father under bolts and hid him away that his sad fate might be forgotten. We shall see, later, when we analyse the Oedipodean legends as given by the Attic dramatists, how Oedipus is filled with natural grief, but is free from that sense of moral guilt which we should expect him to have felt. He constantly pleads that he did not know that the man whom he slew was Laius, his father. Was this plea invented in later years, or was it part of the original legend? Seebohm[151] has told us that in primitive clan societies ‘accidental homicide within the kindred does not seem to be followed even by exile.’ Was it, then, because of ‘accidental’ or involuntary[152] parricide that Oedipus continued to rule over the Cadmeans? Oedipus was not an Achaean. Minoan or Cadmean, which was he? It does not matter, for our purpose, if he obeyed the ‘dooms’ of private vengeance in tribal society. Homer is equally vague about the working of the mother’s curse. Why did Epicaste curse Oedipus? The Attic dramatists do not mention this. Oedipus is cursed in Homer for one reason, and, as we think, for one reason only. It is because other slayers of kinsmen who did not suffer punishment were usually cursed. Thus Meleager, who in a quarrel slew his uncle, was cursed by his mother Althaea.[153] It is an Homeric maxim that the Erinnyes command men to honour their parents.[154]

The second passage which we shall cite is from the Iliad,[155] a passage in which the ghost of Patroclus tells Achilles how his father Menoitius brought him away from home to the realm of Peleus on the day when he slew the son of Amphidamas, though he was but a boy and did not intend it, and was angry over dice.[156] As this is the only passage in Homer which contains an explicit reference to involuntary homicide, and as the slayer is compelled to flee for ever precisely as if the act had been wilful murder, this passage has been quoted[157] as a proof that in early Greece there was no distinction made between murder and manslaughter. If, however, we are right in our discrimination between the Pelasgian and the Achaean attitudes to homicide, it would almost seem as if the passage could be regarded, not indeed as a proof, but perhaps as an indication, of the existence of this distinction in Homeric Greece. May we not suppose that the words of Patroclus are not an expression of subjective innocence by a member of a caste which regarded only objective facts, but a ‘reminiscence’ of a higher ethical code which obtained in the tribal villages around the fortress, and which had enshrined itself in the language which the Achaeans learned from the Pelasgians? In the words of Patroclus we think we can find an echo of a distinction which, in later times, is made the basis of grades of penalties in certain laws of homicide. Plato, whose penal code is probably modelled on the unwritten laws of tribal institutions, points out that a person who slays another in a passion but with intent to kill shall be exiled for a period of three years, while a person who slays in a passion without intent to kill is punished by exile for two years. He adds that ‘it is difficult to give laws on such matters with accuracy.... Of all these matters, therefore, let the guardians of the laws have cognisance ... and let the exiles acquiesce in the decisions of such magistrates.’ We cannot, of course, ignore the main fact given by Homer that Patroclus was compelled to flee from death because of involuntary or quasi-involuntary homicide. But Patroclus was an Achaean and we do not associate with the Achaeans any tendency to discriminate between degrees of guilt. The Achaean system of military control within a small dominant caste was merely capable of preventing indefinite retaliations. It was not interested in homicide as an offence against the stability of social organisations. It had no homicide tribunals, no elaborate code of penalties. We could not expect it to manifest any subtle power of delicate discrimination. It is possible that the military system of historical Sparta was equally crude in its conceptions of homicide-guilt as it was, apparently, equally severe in its punishment.[158]

We shall see, later,[159] when we analyse the laws of Plato’s homicide-code and of the ancient Hebrew code that the distinction between voluntary and involuntary slaying was much more likely to have arisen in the tribal customs of village-communities accustomed to the most minute differentiations in their wergeld system than in systems emanating from centralised political or religious authority. The Homeric poems give us, it is true, no reliable evidence which would help us to arrive at a definite decision on the existence of such a distinction in early Greece, but from the passages we have cited we may at least extract a suggestion that the distinction was really appreciated, and we have suggested a source from which that sentiment may very easily have sprung.

Justifiable and Unjustifiable Homicide

We come now to a kindred problem, namely, the question whether the Pelasgians[160] were aware of a difference between justifiable and non-justifiable slaying? Most writers will admit that there was no vengeance set in motion by death on the field of battle. It was a recognised challenge of strength, an ἄγων, the issue of which was accepted as the will of the gods. But in local blood-vengeance, arising, let us suppose, out of failure to pay wergeld, or when the murderer’s clan defended him at home or did not expel him and feud followed, was there no distinction between murder and just revenge? Glotz, as we should expect, holds that there was no distinction between murder and revenge.[161] ‘Coupable ou non coupable, il est responsable. Qui a versé du sang doit du sang.’ It is thus, certainly, with modern Montenegrins, Albanians and others. But are the creators of Mycenaean civilisation to be compared with these? Glotz conceives the blood-vengeance of early Greece to be what we have called unrestricted vendetta, but this mode of vengeance is not usually associated with settled tribal communities who are otherwise known to accept wergeld, and we maintain that the Pelasgians had reached this stage at the dawn of Greek history. Glotz bases his view for the most part[162] on those numerous ‘flights’ of murderers which Homer records. Now, these references concern murderers, not avengers of murder; and there is no instance, in Homer, of an avenger of blood becoming in turn the object of vengeance. The non-Homeric instances cited by Glotz,[163] such as the trial of Ares for the murder of Halirrhothius, who had dishonoured his daughter; the flight of Hyettos from Argos to Orchomenus, after slaying Molouros, who was caught in adultery with his wife, are derived from Pausanias, Apollodorus, or Euripides, and are therefore irrelevant for the interpretation of the Homeric age.

We admit, with Glotz, that in cases of adultery and seduction slaying was unjustifiable in Homer which would have been justifiable in historical Greece. Glotz[164] points out that the system of compensation for adultery and seduction which is found in the laws of Gortyn recalls, in a certain manner, the custom applied by Hephaestus to Ares in the Odyssey.[165] He says of this system: ‘Nous y retrouvons aussi, exprimées avec précision, quelques-unes des règles que les coutumes ont transmises aux législations[166].... Entre la ποινή de Gortyne et celle de la fin des temps Homériques la ressemblance est frappante.’[167] This is as much as to say that ‘towards the close of the Homeric epoch’ custom (or, as we should say, tribal unwritten law) compelled the husband of an adulterous wife to accept, in certain cases, compensation from the paramour, and to arrest, but not to slay him. In the Odyssey,[168] Hephaestus, having surprised Ares in the arms of his wife, decides to imprison them, saying ‘the snare and the bond will hold them till her sire give back to me the gifts of wooing.’ The other gods, among whom ‘laughter unquenchable arose,’ say that ‘Ares owes the adulterer’s fine’ (μοιχάγρι’ ὀφέλλει). In the Iliad[169] the wife of Proetus falsely accused Bellerophon of attempted adultery,[170] and begged her husband to slay the offender. But Homer tells us that Proetus feared to slay him, and sent him forth to Lycia with the famous σήματα λυγρά—a written injunction to the King of Lycia to put Bellerophon to death—an act which suggests that the death penalty for adultery was not customary in Greece.[171] And surely the existence of a prescribed μοιχάγρια suggests that even amongst the Achaeans the slaying of an adulterer was unjustifiable. We may further infer that amongst the Pelasgians there existed some authority, whether tribal tradition, or clan-custom, which discriminated between the cases in which death could and those in which it could not be inflicted with impunity. The collective execution of death in case of refusal to obey clan-laws regarding the payment of wergeld, or μοιχάγρια, is a clear manifestation of that social justice which claims the right to decide between justifiable and unjustifiable slaying.

We cannot, of course, find any evidence in the Homeric poems for a tabulation of instances of justifiable homicide such as is found in the laws of Dracon.[172] But the Homeric poems present us with a picture which is mainly, if not exclusively, Achaean, and we cannot infer from the absence of Homeric evidence that the Pelasgian tribes which had developed, as we think,[173] a capacity for discriminating between degrees of homicide guilt, had not also evolved a definite conception of the distinction between just and unjust slaying. We shall see[174] later that even the Achaeans recognised at least a distinction between murder and just revenge. Thus, the Achaean Orestes who slew his mother to avenge his father is said by Homer to have ‘gained renown amongst all men.’[175] In the Odyssey,[176] Amphinomus, one of the suitors, refuses to join a conspiracy to murder Telemachus without consulting the gods: ‘I for one would not choose to kill Telemachus: it is a fearful thing to slay one of the stock of kings: nay, first let us seek the counsel of the gods, and if the oracles (θέμιστες) of great Zeus approve, myself I will slay him and bid all the rest to aid; but if the gods are disposed to avert it, I bid you, too, refrain.’ The θέμιστες here attributed to Zeus must be regarded as a reflex of the public opinion of the Achaean caste, which, therefore, had evolved a distinction between just and unjust slaying. In another place[177] Eupeithes, the father of a slain suitor, says ‘It is a scorn if we avenge not ourselves on the slayers of our sons and brothers; rather would I die!’ It is obvious that an act which is a duty prescribed by caste or law or custom cannot be regarded as a crime. So,[178] when the feud arose between Odysseus, who regarded himself as justified in slaying the suitors who had insulted his family, and the suitors, who were contriving what they considered a just revenge, Homer tells us that Odysseus would have slain them all, had not Athene intervened and ordered both sides to desist and to enter into a solemn covenant of reconciliation. This act of Athene[179] signifies that in her opinion both sides are justified in shedding blood, and hence that the feud can be cancelled without disturbing the balance of justice. Now Glotz[180] rightly points out that the ancients attributed to their gods such opinions as they themselves professed; and if Achaeanised Athene acted thus, how can we avoid assuming the existence of at least as high a standard amongst the Pelasgians? In Homer then we may conclude that there existed some distinction between just and unjust slaying. For Glotz, this distinction arises only when the State takes justice into its own hands and legitimatises private vengeance after trial. The date of this evolution, he thinks, is the age of Dracon. But we maintain that, long before Dracon, or perhaps even before Homer, there existed, in Greece, States within States, that is, clans and tribes and phratries, whose interest it was, at the dawn of civilised society, to create the distinction between justifiable and unjustifiable bloodshed, which is so vital to domestic peace.

Collectivity in Vengeance

Nothing that has been said in this chapter is incompatible with the view that punishment, in early societies, tends to be collective and hereditary. Feuds of blood must have occasionally occurred amongst the early Pelasgian folk, but we cannot ignore the control of tribal authority, and the Achaean domination which may have acted as a check. However, it is one thing to declare war on a group which refuses to fulfil the law of a district or of a tribe; it is quite another thing to refuse the ‘satisfaction’ prescribed by custom, and to make a single murder an invariable cause of incessant bloodshed. This is the state of Homeric society as conceived by Glotz, and by most writers on the subject of early Greek homicide. We prefer to emphasise the triumph of reason over passion which is symbolised by a wergeld system of local vengeance, by the worship of common ancestors, real or fictitious, by the early political synoekism of many Greek districts, and by international Amphictyonies of immemorial antiquity. We think that it was in post-Homeric times, when the Achaean control was removed, and the Migrations broke up the solidarity of Pelasgian clans, that Greek societies developed unrestricted vendetta. Glotz[181] has difficulties about the Homeric age. He has to admit that there is no infallible system of collective punishment in Homer. ‘Dans l’Iliade et dans l’Odyssée,’ he says, ‘les querelles strictement personnelles ne lient plus infailliblement au sort de l’offenseur tous les siens. On n’y voit point, après un meurtre ἐμφύλιος, les vengeurs du sang poursuivre la famille du meurtrier.’ The difficulty is obviated by our theory of Achaean restricted vendetta. The vengeance of Achilles[182] for the death of Patroclus is no objection to our theory, as it is not revenge for homicide proper: war is distinct from peace. Achaean kings confiscate property, transfer and destroy whole cities[183]: this is but the autocracy of a quasi-feudal militarism; it is not a punishment of moral guilt.

Euripides[184] makes Tyndareus utter a sentiment regarding the legitimate modes of homicide-vengeance which seems to us to be very applicable to early Greek societies. Tyndareus objects to the infliction of death as a penalty for the slaying of Agamemnon, on the ground that such penalties, in the absence of State-control, would inevitably lead to an indefinite series of retaliations. ‘Right well,’ he says, ‘did our ancestors in olden times enact these ordinances ... they punished (the murderer) with exile, but they suffered no one to slay him in return, for (in that eventuality) each successive avenger would be liable for bloodshed.... I will support the law, and try to check this brutal murderous practice destructive alike of individual States and of the world.’ We shall see later[185] that Euripides is either consciously archaising in this passage or that the view of Tyndareus was somehow preserved in the legend which the dramatist follows. In either case, it seems to us to contain a valuable principle regarding the fear of unrestricted vendetta, of collective and hereditary punishment, which is found in civilised tribal societies in a condition of private vengeance. Such societies have either to abandon civilisation, and to fall back into a chronic state of chaotic barbarism, or to adopt a system of ‘social justice’ which, by definite rules and regulations, expressive of tribal authority, by public opinion and religious sanctions, prevents, as far as possible, the innocent from suffering with the guilty.

The penalty of wergeld was, in a certain sense, collective because it was diffused throughout the kindred. But this penalty is clearly far removed from the collective punishment of a barbarous hypervengeance. It arises, we have said, from the simple fact that property, in early society, was to a great extent collective or common; and also from the fact that the individual of tribal life was not the isolated personality which feudal and modern civilisations have evolved, but was rather a branch of one great wide-spreading tree in which he lived and moved and had his being. Finally, in regard to the Homeric society, we must remember that the Achaeans stood on quite a separate plane. Amongst them there is little or no suggestion of collective punishment. Achaean military discipline prevented it. Such traces of this punishment as are found in many later legends must be attributed, as we shall see, to post-Homeric influences.

FOOTNOTES

[1] See Blutrache bei den Griechen, chapter i.

[2] See History of Greece (second edition), p. 172.

[3] History of Greece, vol. ii. p. 32.

[4] See Manual of Greek Antiquities, p. 407.

[5] P. 408.

[6] La Solidarité de la Famille, Book I. (passim).

[7] See s.v. φόνος, p. 439.

[8] See supra, p. [11].

[9] Loc. cit. p. 440.

[10] See, e.g., Glotz, loc. cit. pp. 56-7: ‘Les Grecs ont toujours senti et manifesté avec une vivacité extrême le bonheur de se venger. Le cannibalisme qu’ils avaient pratiqué à l’époque de la sauvagerie primitive, resta dans leur langue, s’il disparut de leurs mœurs.’ On p. 57 they are compared to Montenegrins and Arabs.

[11] Pp. 253-5.

[12] Il. xxiii. 85.

[13] Il. ix. 565.

[14] Il. xv. 334; Il. xxiv. 480.

[15] Il. xviii. 490-508.

[16] P. 516.

[17] See also J.H.S. xiii. 123-6 (1887). The view was first suggested by Müncher (1829); see Glotz, p. 116.

[18] See infra, p. [37 ff.]

[19] See supra, p. [21].

[20] Op. cit. p. 162 ff.

[21] Op. cit. p. 105.

[22] Pott, Corssen, Curtius, quoted by Glotz, loc. cit.

[23] E.g. Il. ix. 131-2, ἀπερείσι’ ἄποινα.

[24] Op. cit. p. 110.

[25] Op. cit. p. 114.

[26] Compare the weeping of Hrethel, when his eldest son was killed by his second son—and no vengeance was possible within the ‘family.’ Beowulf (2464), quoted by F. Seebohm, p. 63.

[27] Il. viii. 500 ff.

[28] Il. ix. 378-386.

[29] Il. ix. 625.

[30] See infra, p. [43].

[31] See Iliad xii. 422 and supra, p. [17].

[32] Op. cit. p. 115. ‘Rien ne prouve ici que la justice sociale intervienne à quelque titre et de quelque manière que ce soit, ni pour imposer ou conseiller un accommodement, ni pour indiquer le montant de la composition.’

[33] Il. ix. 634 suggests an ‘arrangement’ by which either (a) exile absolved the clan from punishment (cf. Laws of King Edmund, Seebohm, p. 356) or (b) exile was accepted in lieu of the murderer’s share of the wergeld (cf. Canones Wallici, quoted by Seebohm, op. cit. p. 109).

[34] See Soph. Antigone, 456-7.

[35] Il. xviii. 490-508.

[36] Op. cit. pp. 473-4.

[37] See his Edition of Iliad, vol. ii. pp. 340-1.

[38] See Monro, loc. cit.

[39] P. 516; supra, p. [25].

[40] P. 312.

[41] See also J.H.S. xiii. pp. 123-6 (1887), and Glotz, op. cit. p. 116.

[42] P. 516.

[43] 490-508.

[44] ἴστωρ, see infra, p. [43].

[45] E.g. Hofmeister, Leist, Dareste; see Glotz, loc. cit.

[46] Op. cit. p. 116.

[47] P. 312 ff.

[48] For a fine illustration of Achaean ‘arbitration’ in homicide, see Euripides, Hecuba (1130 ff.).

[49] P. 258.

[50] Minoans or Achaeans.

[51] Cf. Glotz, op. cit. p. 122. Aussi celui, qui traite au nom d’une famille lésée, doit avoir pleins pouvoirs d’agir au nom de tous ou en référer au groupe qu’il représente.

[52] See Das Attische Recht und Rechtsverfahren, Einleitung, pp. iv. ff.

[53] That is, if he was proved to be innocent of the crime.

[54] See Leaf’s note in edition of Iliad (1902), p. 611 ff.

[55] Od. xv. 388.

[56] Od. xv. 429.

[57] Od. xv. 452.

[58] Il. x. 378.

[59] Il. xxi. 41-80.

[60] Il. ix. 264.

[61] Od. iv. 525.

[62] See supra, p. [10]; Seebohm, op. cit. p. 123 ff.

[63] Ancient Law, p. 313. See Leaf, edition of Iliad (1902), p. 612.

[64] Op. cit. p. 119.

[65] Seebohm, op. cit. pp. 43-5.

[66] See supra, p. [11]; Seebohm, op. cit. pp. 328, 356.

[67] See supra, p. [7].

[68] λαοὶ δ’ ἀμφοτέροισιν ἐπήπυον.

[69] ἀμφὶς ἀρωγοί.

[70] κήρυκες δ’ ἄρα λαὸν ἐφήτυον.