PHONOS
PHONOS (
φόνος), homicide. The
feelings and customs of the Greeks with regard to homicide in general
underwent a great change during the early historical period. From the Heroic
age downwards, two primitive notions may be traced at work, yielding in
different degrees to more modern and civilised ideas: the right and duty of
private revenge, passing subsequently into public prosecution and
punishment; and the feeling that all homicide, however justifiable or
accidental, required a ceremonial purification (cf. Antiph.
de Caed.
Herod. § 11;
DICASTERION). Both these institutions are common to primitive
societies in general; they are represented by the “avenger of
blood” and the “cities of refuge” in the Mosaic law; and
the former, at least, is not yet extinct where society fails in the duty of
repressing violence. There are still, in America, “parts of the
Southern States in which homicide goes unpunished, except by the
relatives of the slain” (Bryce,
Amer.
Commonwealth, 3.150). The parallel between early Greece and early
Germany, whether as described by Tacitus or in the post-Roman Teutonic
codes, is instructively worked out by Grote (pt. i. ch. 20 = 1.483 ff.).
At Athens the right of private vengeance was discountenanced and driven into
the background as early as the Draconian legislation. It survived only in a
few special cases: the adulterer caught in the act might be put to death by
the injured husband; and personal chastity might be defended, even by
bloodshed, against the worst form of
ὕβρις. The kinsmen of the deceased were no longer allowed to
take the law into their own hands, but they were the legitimate and
authorised prosecutors.
By the Attic law of historic times, homicide was either
ἑκούσιος or
ἀκούσιος, a
distinction which corresponds in some measure, but not exactly, with our
murder and
manslaughter; for
the
φόνος ἑκούσιος might fall within the
description of justifiable homicide, while
φόνος
ἀκούσιος might be excusable homicide (
Att.
Process, pp. 377-8, Lips.). According to the different circumstances
under which the homicide was committed, the tribunal to which the case was
referred, and the modes of proceeding at Athens, varied. All
φονικαὶ δίκαι belonged to the jurisdiction of
the
ἄρχων βασιλεὺς as
ἡγεμὼν δικαστηρίου. He was anciently the sole
judge in cases of unintentional homicide; for such an act was considered in
a religious point of view, as being a pollution of the city; and it became
his duty, as guardian of religion, to take care that the pollution (
ἄγος) was duly expiated. On the
ἐφέται, by whom the
ἄρχων βασιλεὺς was assisted, see
EPHETAE in Vol. I. In discussing this subject we
have to consider the various courts established at Athens for the trial of
homicide, the different species of crime therein respectively prosecuted,
the manner of proceeding against the criminal, and the nature of the
punishment to which he was liable.
Solon, who seems to have remodelled the court of Areiopagus, enacted that
this court should try cases of murder and malicious wounding, besides arson
and poisoning (Dem.
c. Aristocr. p. 627.22). One would be
deemed a murderer who instigated another to commit
[p. 2.385]the deed, provided the purpose were accomplished (Dem.
c.
Conon. p. 1264.25; Matthiae,
de Jud. Ath. p. 148).
Besides the court of Areiopagus, there were four other courts, of which the
ἐφέται were judges:
τὸ ἐπὶ Παλλαδίῳ, τὸ ἐπὶ Δελφινίῳ, τὸ ἐπὶ
Πρυτανείῳ, and
τὸ ἐν
Φρεαττοῖ (Harpocr. et Suid. s. v.
Ἐφέται). To the court
ἐπὶ
Παλλαδίῳ belonged cases of accidental homicide,
manslaughter, and attempts to commit murder (
βουλεύσεις). Such a case as that mentioned by Demosthenes
(
c. Neaer. p. 1348.9), of an unlawful blow followed by
death, would be manslaughter. It seems also that this court had a concurrent
jurisdiction with the Areiopagus in charges of murderous conspiracy, which
was carried into effect. The law perhaps allowed the prosecutor to waive the
heavier charge, and proceed against the offender for the conspiracy only.
(Harpocr. s. v.
Βουλεύσεως: Antiph.
Tetral. iii.
β,
§ 5; Matt. p. 150.) As to the supposed origin of this court, see
Harpocr. s. v.
Ἐπὶ Παλλαδίῳ: Pollux,
8.118. To the court
ἐπὶ Δελφινίῳ were
referred cases where the party confessed the deed, but justified it;
ἄν τις ὁμολογῇ μὲν κτεῖναι, ἐννόμως δὲ
φῇ δεδρακέναι. Demosthenes calls it
ἁγιώτατον καὶ φρικωδέστατον (
c. Aristocr.
p. 644.74; Harpocr. s. v.
Ἐπὶ
Δελφινίῳ: Pollux, 8.119). In the court
ἐπὶ Πρυτανείῳ the objects of prosecution were inanimate
things, as wood, stone, or iron, which had caused the death of a man by
falling on him (APSYCHON DIKÉ; add to
references
Att. Process, p. 131, Lips.; Suidas, s. v.
Νίκων: Aeschin.
c.
Ctes. § 244). Matthiae (p. 154) thinks there was an
ulterior object in the investigation, viz. that, by the production of the
instrument by which death was inflicted, a clue might be found to the
discovery of the real murderer, if any. The court
ἐν
Φρεαττοῖ was reserved for a peculiar case; where a man,
after going into exile for an unintentional homicide, and before he had
appeased the relations of the deceased, was charged with having committed
murder. He was brought in a ship to a place in the harbour called
Φρεαττώ, and there pleaded his cause on board
ship, while the judges remained on land. If he was convicted, he suffered
the punishment of murder; if acquitted, he suffered the remainder of his
former punishment. The object of this contrivance was to avoid pollution
(for the crime of the first act had not yet been expiated), and at the same
time to bring the second offence to trial. (Dem.
c. Aristocr.
p. 646, § § 77-79; Harpocr. s. v.
Ἐν Φρεαττοῖ: Pollux, 8.120; Matth. p. 155.)
To one or other of these courts all
φονικαὶ
δίκαι were sent for trial; and it was the business of the
ἄρχων βασιλεὺς to decide which. The
task of prosecution devolved upon the nearest relatives of the deceased; and
in case of a slave, upon the master. To neglect to prosecute, without good
cause, was deemed an offence against religion; that is, in any relation not
further removed than a second cousin (
ἀνεψιαδοῦς). Within that degree the law enjoined the relations
to prosecute, under penalty of an
ἀσεβείας
γραφή, if they failed to do so. (Dem.
c. Androt.
p. 593.2;
c. Macart. p. 1069.57;
c. Everg. et
Mnes. pp. 1160, 1161, § § 68-73; Antiph.
de
caede Herod. § 48.) They might, however (without
incurring censure), forbear to prosecute, where the murdered man had
forgiven the murderer before he died (Dem.
c. Pantaen. p.
983.59); or, in cases of involuntary homicide, where the offender gave the
satisfaction which the law required; unless the deceased had given a special
injunction to avenge him. (Lysias,
c. Agor. §
§ 41, 78; Matth. p. 170.) The meaning of the phrase
ἐντὸς ἀνεψιαδῶν in these cases has been
disputed, some thinking that the limit was drawn at a first
cousin‘s son, or what is usually called a first cousin once
removed. It is simpler and better to take it as including second cousins, i.
e. all the descendants of a common great-grandfather. The distinction is not
noticed in L. and S. s. v. (Cf. Thalheim,
Rechtsalterth. p.
59;
Att. Process, p. 199, n. 10, Lips.)
The first step taken by the prosecutor was to give notice to the accused to
keep away from all public places and sacrifices. This was called
πρόρρησις, and was given at the funeral of the
deceased (Antiph.
de caed. Her. § § 10, 88;
de Chor. § § 4, 34;--Dem.
c.
Lept. p. 505.158;
c. Aristocr. p. 632.38;
c. Everg. et Mnes. p. 1160.69). After this, he gave a
public notice in the market-place, warning the accused to appear and answer
to the charge: here he was said
προειπεῖν
or
προαγορεύειν φόνου (Dem.
c.
Macart. p. 1068.69; [Dem.]
c. Neaer. p. 1348.9).
The next thing was to prefer the charge before the king-archon. To such
charge the term
ἐπισκήπτεσθαι or
ἐπεξιέναι was peculiarly applied (Pollux, 8.33,
118; Harpocr. s. v.
Ἐπεσκήψατο: Antiph.
de Venef. § 1). The charge was delivered in
writing; the prosecutor was said
ἀπογράφεσθαι δίκην
φόνου (Antiph.
de Chor. § 36). The
king-archon having received it, after first warning the defendant
ἀπέχεσθαι τῶν μυστηρίων καὶ τῶν ἄλλων
νομίμων (Pollux, 7.66, 90), proceeded in due form to the
ἀνάκρισις. The main thing to be inquired into
was the nature of the offence, and the court to which the cognisance
appertained. The evidence and other matters were to be prepared in the usual
way. Three months were allowed for this preliminary inquiry, and there were
three special hearings, one in each month, called
διαδικασίαι, or (as now read after Pollux, 8.24)
προδικασίαι (Antiph.
de Chor.
§ 42); after which, in the fourth month, the king-archon
εἰσῆγε τὴν δίκην (Matth. p. 160). The
defendant was allowed to put in a
παραγραφή, if he contended that the charge ought to be tried in
one of the minor courts (Pollux, 8.57).
All the
φονικὰ δικαστήρια were held in the
open air, in order that the judges might not be under the same roof with one
suspected of impiety; nor the prosecutor with his adversary (Antiph.
de caed. Her. § 11). The king-archon presided,
with his garland taken off (Pollux, 8.90; cf. Lycurg.
c.
Leocr. § 122; BOULÉ,
Vol. I. p. 310
a). The parties were bound by
the most solemn oaths: the one swearing that the charge was true, that he
bore such a relationship to the deceased, and that he would in conducting
his case confine himself to the question at issue; the other declaring the
charge to be false (Antiph.
de caed. Herod. §
§ 11, 90;
de Chor. § § 14,
16;--Dem.
c. Everg. et Mnes. p. 1161.73; Matth. p. 163).
The witnesses on both sides were sworn in like manner (Antiph.
de
caed. Herod. § § 12, 15;
Att.
Process, pp. 884-7, Lips.); and slaves were allowed to appear as
witnesses (
Att. Process, p. 875, Lips.). Either
[p. 2.386]party was at liberty to make two speeches, the
prosecutor beginning, as may be seen from the
τετραλογία of Antiphon; but both were obliged to confine
themselves to the point at issue (Lys.
c. Simon. §
46; Antiph.
de Chor. § 16). Advocates (
συνήγοροι) were not admitted to speak for the
parties anciently, but in later times they were (Matth. p. 164). Two days
were occupied in the trial. After the first day the defendant, if fearful of
the result, was at liberty to fly the country, except in the case of
parricide. Such flight could not be prevented by the adversary, but the
property of the exile was confiscated (Pollux, 8.117; Dem.
c.
Aristocr. p. 634.45; p. 643.69; Matth. p. 167). On the third day
the judges proceeded to give their votes; for which two boxes or urns were
provided (
ὑδρίαι or
ἀμφορεῖς), one of brass, the other of wood; the former for
the condemning ballots, the latter for those of acquittal. An equal number
of votes was an acquittal; a point first established (according to the old
tradition) upon the trial of Orestes (Aeschyl.
Eumen. 752;
Matth. p. 165).
As the defence might consist either in a simple denial of the killing or of
the intention to kill, or in a justification of the act, it is necessary to
inquire what circumstances amounted to a legal justification or excuse. We
learn from Demosthenes (
c. Aristocr. p. 637.54) that it was
excusable to kill another unintentionally in a gymnastic combat, or to kill
a friend in battle or ambuscade, mistaking him for an enemy; that it was
justifiable to slay an adulterer if caught in the act, or a paramour caught
in the same way with a sister or daughter, or even with a concubine, if her
children would be free. (As to an adulterer, see Lys.
de caed.
Eratosth. § § 25, 26;
Plut. Sol. 23.) It was lawful to kill a robber at the time when
he made his attack (
εὺθὺς ἀμυνόμενος),
but not after (Dem.
c. Aristocr. p. 639.60). By a special
decree of the people, made after the expulsion of the thirty tyrants, it was
lawful to kill any man who attempted to establish a tyranny, or put down the
democracy, or committed treason against the state (Lycurg.
c.
Leocr. § 125; Andoc.
de Myst. §
96). A physician was excused who caused the death of a patient by mistake or
professional ignorance (Antiph.
Tetral. § 5). This
distinction, however, must be observed, Justifiable homicide left the
perpetrator entirely free from pollution (
καθαρόν). That which, though unintentional, was not perfectly
free from blame, required to be expiated. See the remarks of Antiphon in the
Tetralogia,
B. § 11. (Cf. Thalheim, p. 42;
Att. Process, p. 377 ff.)
It remains to speak of the punishment.
The courts were not invested with a discretionary power in awarding
punishment; the law determined this according to the nature of the crime.
Wilful murder was punished with death (Antiph.
de caed. Her.
§ 10; Dem.
c. Mid. p. 528.43). It was the duty of
the Thesmothetae to see that the sentence was executed, and of the Eleven to
execute it (Dem.
c. Aristocr. p. 630.31; Meier,
Att.
Proc. p. 84; Schömann,
Ant. Jur. Publ.
p. 246). We have seen that the criminal might avoid it by flying before the
sentence was passed. Malicious wounding was punished with banishment and
confiscation of goods (Lys.
c. Simon. § 42; Matth.
p. 148). So were attempts to murder (
βουλεύσεις). How far incitements to murder, by one who did not
strike the blow himself, were liable to a
φόνου
γραφή, is a point of some difficulty. Of a case of this kind
Demosthenes says (
c. Conon. p. 1264.25),
ἐξέβαλεν ἡ βουλὴ ἡ ἐξ Ἀρείου πάγου. The
usual explanation of
ἐξέβαλεν is
“banished” (A. Schaefer,
Dem. u. seine Zeit,
3.2, 114 n.; Sandys
ad loc.; Meier, in
Att.
Process); Lipsius pronounces this a mistake, and insists that
the word means only “expelled,” i. e. not from the country, but
from the Areiopagus. Probability, as it seems to us, from the analogy of
Athenian practice and its well-known aversion to crimes of violence, is all
in favour of the former view. Whenever such a crime was treated as murder,
it might be punished with death, at least if it was tried in the Areiopagus;
for it is doubtful whether the minor courts (except that
ἐν Φρεαττοῖ) had the power of inflicting
capital punishment (Matth. p. 150; Schömann,
Ant. Jur.
Publ. p. 294;
Att. Proc. p. 386, Lips.). If the
criminal who was banished, or who avoided his sentence by voluntary exile,
returned to the country, an
ἔνδειξις might
forthwith be laid against him, or he might be arrested and taken before the
Thesmothetae, or even slain on the spot (Suidas, s. v.
Ἔνδειξις: Matth. p. 168). The proceedings by
ἀπαγωγὴ (arrest) might perhaps be taken against
a murderer in the first instance, if the murder was attended with robbery,
in which case the prosecutor was liable to the penalty of a thousand
drachmas if he failed to get a fifth of the votes (Dem.
c.
Aristocr. p. 647.80; Meier,
Att. Proc. p. 278,
Lips.). But no murderer, even after conviction, could lawfully be killed, or
even arrested, in a foreign country (Dem.
c. Aristocr. p.
631.35; p. 632.38). The Greek notion of humanity forbade such a practice; it
was a principle of international law that the exile had a safe asylum in a
foreign land. If an Athenian was killed by a foreigner abroad, the only
method by which his relations could obtain redress was to seize natives of
the murderer's country (not more than three), and keep them until the
murderer was given up for judgment. [
ANDROLEPSIA]
Those who were convicted of unintentional homicide, not perfectly excusable,
were condemned to leave the country for a year. They were obliged to go out
(
ἐξέρχεσθαι) by a certain time, and by
a certain route (
τακτὴν ὁδόν), and to
expiate their offence by certain rites. Their term of absence was called
ἀπενιαυτισμός: which probably does not
mean, as the grammarians took it, banishment for a year only, but for a
longer period [
EXSILIUM p. 817
a]. It was their duty also to appease
(
αἰδεῖσθαι) the relations of the
deceased, or, if he had none within the prescribed degree (
ἐντὸς ἀνεψιαδῶν, see above), the members of
his clan (
φράτορες), either by presents or
by humble entreaty and submission. If the convict could prevail on them, he
might even return before his time had expired. The word
αἰδεῖσθαι is used not only of the criminal
humbling himself to the relations, but also of their forgiving him (Harpocr.
s. v.
Ὑποφόνια: Demosth.
c.
Pantaen. p. 983.59;
c. Macart. p. 1069.57;
c. Aristocr. p. 643.72;--Matth. p. 170). The property of
such a criminal was not forfeited, and it was unlawful to do any injury to
him either on his leaving
[p. 2.387]the country or during
his absence (Demosth.
c. Aristocr. p. 634.44).
Such was the constitution of the courts, and the state of the law, as
established by Solon, and mostly indeed by Draco; for Solon retained most of
Draco's
φονικοὶ νόμοι (Demosth.
c.
Everg. p. 1161.71;
c. Aristocr. p. 636.51). But
it appears that the jurisdiction of the
ἐφέται in later times, if not soon after the legislation of
Solon, was greatly abridged [
EPHETAE]; and that most of the
φονικαὶ
δίκαι were tried by a common jury. With the progress of
democratic ideas, the ordinary method of trial was, as has been see under
EPHETAE preferred to the
ancient aristocratical constitution of that court. In an inscription of the
year 409-8 B.C. we find that
δικάζειν (here
meaning the
ἡγεμονία δικαστηρίου) is the
function of the
βασιλεύς, διαγνῶναι (i. e.
to give a verdict, the ordinary sense of
δικάζειν) that of the
ἐφέται
(
C. I. A. 1.61;
Att. Process, pp. 16, 17,
Lips.). Their jurisdic-diction in the courts
ἐν
Φρεαττοῖ and
ἐπὶ
Πρυτανείῳ was, no doubt, still retained; and there seem to have
been other peculiar cases reserved for their cognisance (Pollux, 8.125;
Matth. p. 158; Schömann,
Ant. Jur. Pub. p. 296).
Whether the powers of the Areiopagus, as a
criminal
court, were curtailed by the proceedings of Pericles and Ephialtes,
or only their administrative and censorial authority as a
council, has been discussed under
AREIOPAGUS The strong language of Demosthenes
(
c. Aristocr. p. 641.65) inclines one to the latter
opinion. See also Dinarchus (
c. Aristog. init.), from which
it appears there was no appeal from the decision of that court (Matth. 166;
Platner,
Proc. und Klag. 1.27; Schömann,
Ant.
Jur. Pub. p. 301; Thirlwall,
Gr. Hist. vol.
3.100.17, p. 24).
No extraordinary punishment was imposed by the Athenian legislator on
parricide. Suicide was not considered a crime in point of law, though it
seems to have been deemed an offence against religion; for by the custom of
the country the hand of the suicide was buried apart from his body.
(Aeschin.
c. Ctes. § 244; Aristot.
Eth.
Nic. 5.15 (11) = p. 1138 a, 12; Becker-Göll,
Charikles, 3.164 f.;
Att. Process, p. 381,
Lips.)
Little is known as to the
φονικοὶ νόμοι of
other states. At Sparta, it would seem, the law of
φόνος ἀκούσιος was more severe than at Athens: one
Dracontius is mentioned as banished for life for an involuntary homicide
committed when a boy (
Xen. Anab. 4.8,
§ 25; cf. Grote, pt. i. ch. 20, p. 486 in.).
(Thalheim,
Rechtsalterth. pp. 42 f., 106, 109, 125. The
references in
Att. Process are spread through the whole work,
and must be found from the Index.)
[
C.R.K] [
W.W]
