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
contriver of homicide is frequently referred to in Attic tragedy. It
was, we must suppose, a strong feature in traditional legend. Euripides,
as we shall see, refers to this blood-guiltiness in several plays, for
instance in the _Orestes_,[152] the _Electra_,[153] the _Medea_,[154] the
_Andromache_,[155] and the _Heracleidae_.[156]
But there is another kind of homicide guilt which may easily be confused
with this, namely ‘attempted murder.’ The Greek words βούλευσις and ὁ
βουλεύσας are unfortunately ambiguous, as we have already explained.[157]
Subjectively, the guilt of the ‘plotter’ and of the ‘attempter’ is the
same, but objectively there is a difference. In one case a human life is
violently taken: in the other it is not. Lipsius seems to have confused
these issues.[158] In Aristotle’s account of the Attic murder courts, he
finds a reference to βούλευσις being tried at the _Palladium_. Knowing,
from the speech of Demosthenes _against Conon_,[159] that ‘plotters’
were tried at the Areopagus, he supposes that a change of jurisdiction
had taken place shortly before 330 B.C. Before this, he implies that
there was a division of labour by which βουλεύσεις φόνου ἀκουσίου were
held at the Palladium, and βουλεύσεις φόνου ἑκουσίου at the Areopagus.
We confess we cannot find any meaning in ‘plots of manslaughter’; it
is a contradiction in terms! Now Poste, in his translation of this
Aristotelian passage, does not use the word ‘plotters’ in connexion with
the Palladium. He translates thus: ‘Homicide with malice aforethought is
tried in the Areopagus, including homicide by wounding, by administering
poison, or by fire ... involuntary homicide, attempts to commit homicide
... are tried in the Palladium.’ Thus, we see the difficulties which
arise from ambiguities of language. We have quoted Andocides for the
principle that plotting murder was regarded as equivalent to wilful
murder. A Draconian law mentions both kinds as equally punished in cases
of unjustifiable homicide. Therefore plots to kill would normally always
have been tried by the Areopagus. Poste’s translation of Aristotle, which
is superior to Lipsius in this respect, nevertheless suggests perhaps
that ‘malicious wounding’ without fatal results was not tried by the
Areopagus. The law which Aristotle gives is that of Dracon, and it means
that the Areopagus tried wilful murderers, plotters of murder, wounding
with intent to kill, poisoning with intent to kill, and arson—whether
with intent to kill or not, we cannot say. Attempted murder must be
defined, we think, owing to some discrimination in Attic legal procedure,
as an attempt to kill which did not cause any actual bodily harm.[160]
Such attempts may have been always tried at the Palladium, but what the
penalty was we cannot say—it was probably banishment for a period of
years.
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