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The Law of Ancient Athens
By David D. Phillips The University of Michigan Press
Copyright © 2013 the University of Michigan
All rights reserved.
ISBN: 978-0-472-11887-8
CHAPTER 1
Homicide
Handbooks: J. H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig 1905–15) 317–38, 600–19; A. R. W. Harrison, The Law of Athens (Oxford 1968–71) 2.36–43, 77–78, 86–87, 225–28; D. M. MacDowell, The Law in Classical Athens (Ithaca, NY 1978) 109–22; S. C. Todd, The Shape of Athenian Law (Oxford 1993) 271–76. Studies: G.Glotz, La solidarité de la famille dans le droit criminel en Grèce (Paris 1904); E. Ruschenbusch, "ΦONOΣ: Zum Recht Drakons und seiner Bedeutung für das Werden des athenischen Staates," Historia 9 (1960) 129–54; D. M. MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester 1963); W. T. Loomis, "The Nature of Premeditation in Athenian Homicide Law," JHS 92 (1972) 86–95; R. S. Stroud, Drakon's Law on Homicide (Berkeley 1968); M. H. Hansen, Apagoge, Endeixis and Ephegesisagainst Kakourgoi, Atimoi and Pheugontes (Odense 1976); E. Cantarella, Studi sull'omicidio in diritto greco e romano (Milan 1976); M. Gagarin, "Self-Defense in Athenian Homicide Law," GRBS 19 (1978) 111–20; R. Stroud, The Axones and Kyrbeis of Drakon and Solon (Berkeley 1979); M. Gagarin, "The Prosecution of Homicide in Athens," GRBS 20 (1979) 301–23; M. H. Hansen, "The Prosecution of Homicide in Athens," GRBS 22 (1981) 11–30; M. Gagarin, Drakon and Early Athenian Homicide Law (New Haven 1981); R. W. Wallace, The Areopagos Council, to 307 B.C. (Baltimore 1989); S. C. Humphreys, "A Historical Approach to Drakon's Law on Homicide," in Symposion 1990, ed. M. Gagarin (Köln 1991) 17–45; A. Tulin, Dike Phonou: The Right of Prosecution and Attic Homicide Procedure(Stuttgart 1996); E. Carawan, Rhetoric and the Law of Draco (Oxford 1998); E. Volonaki, "'Apagoge' in Homicide Cases," Dike 3 (2000) 147–76; M. Gagarin, Writing Greek Law (Cambridge 2008) 93–109; D. D. Phillips, Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes (Stuttgart 2008); W. Riess, "Private Violence and State Control: The Prosecution of Homicide and Its Symbolic Meanings in Fourth-Century BC Athens," in Sécurité collective et ordre public dans les sociétés anciennes, ed. P. Ducrey and C. Brelaz (Geneva 2008) 49–101.
While the Classical Athenians believed that their homicide laws and courts originated in legendary antiquity (20; cf. 8b), and the Alcmaeonids were tried and exiled for acts of homicide and sacrilege (1), the history of Athenian homicide law in the strict sense begins with Draco, who was appointed to codify the laws of Athens in 621/0 B.C. (6a). Although the rest of Draco's laws were repealed by Solon in 594/3 (6b), his homicide law remained in force through the Classical period. Draco's homicide law is known from a late fifth-century inscription (2), supplemented by provisions cited by Classical orators (3, 4, 5). Draco distinguished between intentional and unintentional killing, established equal liability for killing with one's own hand and conspiracy to kill (see also 7b, 9b, 25, 28), and restricted homicide prosecutions to relatives of the victim within the degree of descendant first cousin once removed (although, in default of these, further kin may have been eligible to prosecute: see 2). Draco also defined circumstances under which killing was lawful (3f, 13a; cf. 3b).
The legal procedure for homicide created by Draco, called the dikê phonou (cf. 3e, 3i), commenced at the funeral of the victim, where his kinsmen made a proclamation against the suspected killer announcing their intent to prosecute (2, 4, 17). In the Classical period, a second proclamation was made by the archon known as the basileus, who superintended the system of homicide courts (9c-d, 25; cf. 18). The proclamation by the basileus was followed by three preliminary hearings (prodikasiai; singular prodikasia) in successive months; the case went to trial in the fourth month (9c). A defendant could be prosecuted by dikê phonou for intentional homicide (hekousios phonos/phonos ek pronoias:19b, 20, 22a, 25), unintentional homicide (akousios phonos/phonos mê ek pronoias:2, 20, 22a,25), conspiracy to commit intentional homicide (bouleusis hekousiou phonou:7; ?19a), or conspiracy to commit unintentional homicide (bouleusis akousiou phonou:9).
Draco and the Classical sources on Athenian homicide law employ a variety of terms to describe the volition of the killer, and modern translations of these terms vary. The positive terms are hekôn and hekousios (commonly rendered "intentional," "voluntary," or "willing") and ek pronoias(literally "as a result of pronoia," a word that is rendered "intent," "deliberation," or "premeditation"; ek pronoias accordingly would mean "intentional," "deliberate," or "with premeditation"). The corresponding negative terms are akôn and akousios ("unintentional," "involuntary," "unwilling") and ou/mê ek pronoias ("not as a result of pronoia," therefore "unintentional," "not deliberate," "without premeditation"). The predominant view, adopted here, holds that in the law of homicide the positive terms are all equivalent and denote the presence of intent to cause harm (not necessarily death), and the negative terms are also all equivalent and denote the absence of such intent. On this issue, and for varying scholarly opinions, see especially Loomis, "The Nature of Premeditation"; Gagarin, Drakon30–37; BL D[Carawan, Rhetoric 33–41, 68–75, 223–27.
By the fifth century, the Athenians had five special homicide courts, and lawsuits were assigned to one of these courts depending on the nature and circumstances of the offense (20, 25). Defendants accused of intentionally killing an Athenian citizen were tried at the Areopagus; those accused of unintentionally killing a citizen, killing a non-citizen, or conspiring to kill were tried at the Palladion (except, perhaps, for those charged with bouleusis of the intentional killing of a citizen, who may have been tried at the Areopagus: see 19a, 25, and 28). Those who asserted a defense of lawful homicide were tried at the Delphinion; accused killers who were already in exile were tried at Phreatto in the Peiraeus; and non-human killers (animals and inanimate objects) were tried at the Prytaneion. At the Areopagus court the entire Council of the Areopagus served as the jury; a board of fifty-one ephetai, who cannot be identified with certainty but were probably a subcommittee of the Council of the Areopagus, served as the jury at the Palladion, Delphinion, and Phreatto courts (although we have evidence that seems to describe a regular dicastic jury serving at the Palladion: contrast 2, 4, and 25 with 10 and 21). The jury at the Prytaneion consisted of the basileus and the four phylobasileis ("tribe-kings": the officials in charge of Athens' four pre-Cleisthenic tribes).
A homicide trial by dikê phonou opened with special oaths (diômosiai; singular diômosia) sworn by both sides (7c, 15, 20, 21). Each side then gave two speeches, in the order prosecution, defense, prosecution, defense, as demonstrated in the Tetralogies of Antiphon (Antiphon 2–4); a defendant was allowed to flee into voluntary exile without hindrance at any point before beginning his second speech (20). After the jury rendered its verdict, which was determined by majority vote, the victorious litigant swore another diômosia (24). Upon conviction, intentional killers of Athenian citizens were punished by execution and confiscation of their property, intentional killers of non-citizens by permanent exile, and unintentional killers by exile that lasted until they were pardoned by their victims' kin (2, 3d, 13b, 20, 22a,23); in accordance with Draco's law, the penalties for conspirators were the same as those for own-hand killers. While convicted killers who obeyed the terms of their exile were protected by law (2, 3c, 3d), those who entered forbidden areas could be killed or arrested with impunity (3b; cf. 5).
Important changes to Athenian homicide law occurred toward the end of the fifth century. By this time (if not earlier: see 18), the Athenians had come to believe that unpurified killers might spread a religious pollution (miasma) to those around them, and hence took precautions to prevent such transmission (5, 8c, 23, 25; cf. 18). During the last quarter of the fifth century, the scope of the endeixis (denunciation) and apagôgê (summary arrest) procedures (p. 30), which were traditionally available against kakourgoi ("malefactors") such as seducers and thieves (cf. 57a Aeschin. 1.91), was broadened so as to include suspected killers, and so these procedures became alternatives to the dikê phonou for the prosecution of homicide (8a). Unlike the dikê phonou, endeixis and/or apagôgê did not require the prosecutor to be related to the victim, involved no preliminary hearings, were tried in ordinary jury-courts (dikastêria: p. 26), and imposed a mandatory death sentence upon all convicted defendants. By the early fourth century, however, prosecutors by apagôgê had to declare that they had apprehended their defendants "in the act" (ep' autophôrôi:14). Another fundamental, but temporary, change to the homicide law came in the aftermath of the reign of the Thirty Tyrants in 404/3, when the Athenians passed an amnesty — the Amnesty of 403 — that drastically limited liability for acts committed during the late oligarchy: only those who had killed with their own hands would be liable to prosecution for homicide, while those who had denounced people and so procured their executions were (at least by the letter of the law) immunized by the Amnesty (11, 12). With this exception, the dikê phonou instituted by Draco and the more recent extension of endeixis and apagôgê to suspected killers remained in effect through the end of the Classical period.
See also 33 Dem. 54.17–19; 43 Dem. 23.50; 54 Lys. 1.24–33;57a Aeschin. 1.91; 62 Lucian, Eunuch 10; 71 Lys. 10 (selections); 170 Andoc. 1.73–79; 240 Dem. 23.50; 266 Plut. Solon 17.1–3; 339]BL D Pl. Euthyphro (selections); 349a Dem. 22.2–3; 358 Plut. Solon 19.4; 368]BL D Dem. 9.41–45; 372 Andoc. 1.96–98; 384SEG 12.87.
1. Trial and punishment of the Alcmaeonids for the killing of Cylon's partisans. (date of trial 636–621)
In 640, Cylon won an Olympic victory in the diaulos ("double-flute," roughly a 400-meter sprint: Eusebius, Chronica 1.33); during a subsequent Olympic festival (1b), but before the legislation of Draco (621/0), he attempted to establish himself as tyrant of Athens by a coup d'état (the possible dates for which are thus 636, 632, 628, and 624). He and his partisans occupied the Acropolis but promptly came under siege by the Athenians en masse, who eventually entrusted command to the nine archons (1b-d; Herodotus' identification in 1a of the relevant magistrates as the "presidents of the naucraries," about whom little is known, is generally rejected), led by Megacles of the Alcmaeonid clan (genos, a hereditary group of related families: cf. 136 Isae. 7.13–17, 27–28, 30). After placing themselves under the protection of Athena ("the goddess" in 1b and 1d), who had a temple (1b), a cult statue (1a, 1d), and an altar (1b) on the Acropolis, the Cylonians agreed to a conditional surrender (1a-b), but as they came down the Acropolis, many of them were killed, some while seeking refuge at the shrine of the Awful Goddesses (Semnai Theai, who came to be identified [Aeschylus, Eumenides] with the Furies: 1b, 1d). These killings and the attendant sacrilege gave rise to the earliest known historical trial in Athens (for some mythical precursors see 20 Dem. 23.65–80, at §§66, 74). The entire Alcmaeonid clan was convicted and sentenced to a religious curse (1a-d) and perpetual exile (1b, 1c), and a Cretan named Epimenides was called in to perform a ritual purification of the city (1c-d). The sentence was revoked in the first half of the sixth century but briefly reinstated in 508/7 (1a).
a. Herodotus 5.71. (date of composition 440s-420s)
R. W. Macan, Herodotus: The Fourth, Fifth, and Sixth Books, 2 vols. (London 1895: text and commentary); W. W.How-J. Wells, A Commentary on Herodotus, 2 vols. (ed. corr. Oxford 1928); R. B. Strassler, ed., The Landmark Herodotus (New York 2007: translation with introduction and notes).
Herodotus of Halicarnassus, the "father of history" (Cicero, De Legibus 1.5), recounts in his Histories the conflicts between the Greeks and Persians that culminated in the Persian Wars (490, 480–479 B.C.). In this passage, he explains the origins of the curse that provided the pretext for the temporary expulsion of Cleisthenes (who upon his return would establish the Athenian democracy) and 700 Alcmaeonid households from Athens in 508/7 (cf. [Aristotle],Constitution of the Athenians [Ath. Pol.] 20).
Those of the Athenians called "the accursed" got their name in the following way. Among the Athenians there was a man named Cylon, an Olympic victor. He aspired to tyranny, and after attracting a faction of men his own age, he attempted to seize the Acropolis. When he was unable to gain control, he sat down in front of the statue as a suppliant. [2] The presidents of the naucraries, who governed Athens at that time, got [Cylon and his men] to rise and abandon sanctuary [by agreeing that they would be] liable to any penalty except death, but they were killed, and the blame fell upon the Alcmaeonids.
b. Thucydides 1.126.3–12. (date of composition 431-ca. 400)
A. W. Gomme-A. Andrewes-K. J. Dover, A Historical Commentary on Thucydides, 5 vols. (Oxford 1945–81); R. B.Strassler, ed., The Landmark Thucydides (New York 1996: translation with introduction and notes).
Thucydides, the immediate successor of Herodotus (1a) in the writing of history, composed a monograph on the Peloponnesian War (431–404 B.C.); he served as an Athenian general in 424 but, due to his failure to maintain control of the city of Amphipolis, was promptly exiled from Athens for the remainder of the conflict. In 432/1, on the eve of war, the Spartans attempted to revive once again the ancient curse upon the Alcmaeonids, demanding that Athens exile them (and in particular, the leading Athenian politician Pericles, who was an Alcmaeonid on his mother's side). In the following passage, Thucydides offers his version of the origin of the curse. "The god" (1.126.4) is Apollo, whose oracle at Delphi was the most important and influential religious site in ancient Greece.
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