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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 βουλὴ 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.)

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