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
From what has been already said[63] it must be sufficiently clear
what was, in our opinion, the origin of murder-trial in early Greece.
The local courts of clans and tribes constituted a nucleus for the
development of central State courts when civic groups emerged into
being through political synoekism. Homicide was a proper subject for
litigation, in the tribal wergeld system, simply because the normal
penalty involved a transfer of collective property or the expulsion of a
tribesman. If then phratry-courts had to decide issues between different
neighbouring clans, if tribal courts had to decide disputes between
clans of widely separated localities, is it not natural to suppose that
the State courts of synoekised areas would have adjudicated in disputes
between members of different tribes? Hence the judicial assembly of
tribe-kings (φυλοβασιλεῖς) constituted a more or less important State
court from the most remote antiquity. In historical Athens, Aristotle[64]
assures us that they still judged, at the Prytaneum, indictments
concerning animals and inanimate objects (δικαὶ ἀψύχων). Glotz[65] says
of the Prytaneum Court: ‘Il semble même qu’il ait été le premier et
longtemps le seul tribunal d’Athènes.’
Let us now consider some other hypotheses as to the origin and evolution
of homicide-courts. Glotz and Bury are in agreement in supposing
that wergeld was abolished, not by the Apolline religion, but by the
establishment of State power: though, in so far as it was the Apolline
doctrine of ‘pollution’ which compelled the State to interfere, they
would be compelled to admit that Apollinism contributed to the abolition
of wergeld if it did not directly abolish it. Glotz, in particular, is
anxious to establish a novel theory of his own,[66] to the effect that
it was Solon, not Dracon, who abolished wergeld! The only reason he
gives is that Solon’s general policy was opposed to clan-jurisdiction
or clan-power exercised to the detriment of the State. This opinion we
shall discuss in its proper place.[67] But there is an important element
of truth in the Glotz-Bury position which must be clearly indicated. We
have said that the original Pelasgian State courts very probably heard
disputes in regard to homicide, at least between members of different
tribes. Now, tribal society is based on a close exclusive aristocracy of
birth. Strangers may be received with temporary hospitality, but their
adoption into the permanent life and privileges of the tribe was a matter
of great difficulty.[68] Every tribe contained a gradually increasing
number of ‘hangers-on,’ lackland men, bondsmen, serfs, and casual
vagrants, who may be regarded as the nucleus of the plebeian movement
which in many cases culminated in democracy. The growth of commerce in
the seventh century, the invention of coinage, migration and colonisation
led to the rise of a new aristocracy of wealth[69] as distinct from
birth. Many of the ‘new men,’ who now were very powerful, did not belong
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