Poine: a study in ancient Greek blood-vengeanceTreston, Hubert Joseph
History
Poine: a study in ancient Greek blood-vengeance
Treston, Hubert Joseph
Criminal law (Greek law); Greece -- Civilization; Greek drama (Tragedy) -- History and criticism; Homicide (Greek law); Vendetta
We have seen[117] that in the wergeld system of the tribes, the death
of the slayer generally affected the payment of wergeld, though custom
seems to have varied between the cancellation of the whole wergeld
and the cancellation of the murderer’s share. But we do not think, as
Glotz appears to think, that confiscation took the place of wergeld.
The purgation-rites for homicide, says Glotz,[118] caused the creation
of sanctuaries and gave to the gods their share of the ποινή. We have
seen[119] that in tribal societies which practise wergeld there was a
_saraad_ or honour-price, quite distinct from the _galanas_ or wergeld
proper, and it was this honour-price which we consider to have been the
indirect source of the later penalty of confiscation. In the evolution
of strong central civic government, or of theocratic power, this
element could have been, and usually was, retained, when wergeld was
abolished. But ‘honour-price’ rarely amounted to the total property of
the offender. Hence the direct source of the confiscation penalty must
be sought elsewhere. We have suggested[120] that one direct result of
the evolution of State-power was the conception of certain ‘crimes’
or ‘sins’ as an insult to the State and to its gods. This insult had
to be atoned for in a more substantial and drastic manner than by the
mere payment of an ‘honour-price.’ The State created new penalties, of
which the most important was civic degradation (ἄτιμία). In Greece, this
degradation in its graver forms was usually attended by perpetual exile
and confiscation of property. It is impossible to explain the conjunction
of these two penalties, except on the assumption of grades of criminality
and of degrees of severity in deterrence and in punishment. We cannot
suppose that wilful murder was the gravest crime or sin which the State
had to punish. Treason was much graver. The penalty for treason, at least
in fifth-century Athens, was death and confiscation of property[121]:
and this, we believe, was also the penalty for parricide.[122] But the
penalty for treason was collective and hereditary. No descendant of
a traitor could be permitted to live, or to possess property, in the
State which condemned him. The penalty for parricide was, however,
individualistic, except in so far as confiscation implied a certain
injury to the offender’s family and his descendants. If we may trust
Andocides,[123] the penalty for sacrilege was death, without confiscation
of property, in Athens in 399 B.C. Glotz[124] thinks that after 403 B.C.
confiscation did not accompany death for any crime, even for treason. We
have already[125] discussed a passage in the Third Philippic speech of
Demosthenes, which implies that there was a relaxation in the punishment
of treason which the orator attributes to lack of patriotism. Demosthenes
frequently compares the penalties for manslaughter with the penalties for
murder, and says that they were rightly less severe.[126] But if death
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