Mordprozeß und Strafe im fruhen Athen

Abstract

How was a man who had killed someone intentionally treated in Athens in Draco's time? A provision on justifiable homicide cited by Demosthenes (23. 53) might afford a clue to the solution of this problem. The concluding phrase of it seems to imply that in earlier times intentional homicide as well as unintentional was punished by exile. A Locrian law on settlement (525-500 BC?) may serve as a supporting evidence for this. The text of it suggests that in Locris it was provided by the homicide law that the killer should be banished and his house demolished. It seems very likely that this is just the same as what was customarily established in older days ; for Demosthenes gives a detailed account of the extreme conservatism of the Locrians as to law and mentions that they have enacted only one new law in the past two hundred years (24. 139-141). The expulsion of a killer was not a penalty in the modern sense of the word. Its purpose was to restore the order of society that had been marred by bloodshed, in other words, to rid the whole society of pollution incurred by bloodshed. In Solon's amnesty law (Plut. Sol. 19. 4) the Ephetai and the Prytaneion are referred to as those that have jurisdiction over homicide and slaughter. One could infer from this as follows : Homicide cases were all tried at the Prytaneion before Draco, but after the enactment of homicide law by him, until the jurisdiction over intentional homicide was transferred to the Areopagus, cases of normal (both intentional and unintentional) homicide were heard by the Ephetai, while in those cases in which the killer was unknown, typically in the case of indiscriminate massacre, and in those in which an animal or an inanimate object caused the victim's death the court at the Prytaneion was in charge of trial. The judicial process in the case of normal homicide in early Athens before Draco was probably as follows : The family of the deceased bring an accusation against the killer under a ceremonial oath to the effect that the defendant killed the victim ; the Basileus confirms the fact proved by the oath and adjudges the defendant guilty, and then he is banished from the country. But when the defendant denies that he killed the victim intentionally, he is required to prove it by swearing an oath ; when his case is proved, he is banished with the proviso that he is allowed to return home if the bereaved forgive him. To reform such a primitive judicial system Draco founded a new court where the fifty-one Ephetai sat as a jury. However, in the case of homicide by an unknown hand and of accidental death caused by an animal or an inanimate object, in which there is no conflict between the two parties, trial was still held at the Prytaneion following the above-mentioned primitive procedure even in the fourth century BC, when a rational judicial system had been established.