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 may naturally ask: ‘Why is Apollo appealed to for judgment, when he
has been cited as a witness?’ We have argued that, in Attic law, if we
may trust Plato,[63] matricide could never have been legally justified.
On the other hand the Apolline doctrine of pollution declared that the
defaulting avenger was polluted. The pollution doctrine permitted and
did not condemn ‘private execution.’ It was synoekised State power which
made such execution criminal.[64] The conflict which is presented by
these different points of view was too grave a matter for the decision of
a human court. The command of Apollo was regarded by the legend-makers
as the only solution of that conflict. The only question which a human
court could be reasonably expected to decide was the question whether
Apollo did actually command the act of Orestes. If the actuality of such
a command was established, the acquittal of Orestes was inevitable.
The only alternative possibility was a verdict of ‘responsibility
for murder’[65] against Apollo! But such a verdict, in the religious
atmosphere of the ancient City, would have been unthinkable.
So far therefore the legal issue in the _Eumenides_ is comparatively
intelligible. But we must call attention to the peculiar fact that in
the play Orestes is represented as having been tried not at Argos but at
Athens. If Orestes had slain his mother at Athens, his act would have
been, in Athenian law, a case of homicide between foreigners, and such an
act, though normally in Aeschylean Athens tried by the Palladium court,
could quite conceivably, in pre-Solonian times, have been tried by the
Areopagus. But Orestes did not slay his mother at Athens, and therefore
the case would not have come before any Athenian court, unless Orestes
intended to reside at Athens, and his right to reside at Athens was
challenged by the relatives of the slain. Now, in Greek extradition law
these relatives[66] had no right to object to the residence of the slayer
‘abroad’ unless he was guilty of wilful kin-slaying, as, for instance,
of wilful matricide: for the penalty for kin-slaying in historical
times was death, without the option of exile. It is precisely on such a
charge of wilful matricide that the Erinnyes, in this play, prosecute
Orestes. To that extent their prosecution was lawful. But the fact that
the prosecution took place at Athens implies that Orestes intended to
live in Athens as an exile, at least for a time. We have pointed out
that, according to Greek extradition law, the relatives of the slain
could have compelled the fellow-citizens of the slayer to try him or to
extradite him if he fled to them for refuge. But in cases of kin-slaying
it is probable that any State to which the slayer fled could have been
compelled to put him on trial before they received him as an exile, or
otherwise to expel or extradite him. Yet the avenging relatives were not
compelled to accept a verdict of acquittal in any court as a complete
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