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The Nature of Premeditation in Athenian Homicide Law

Published online by Cambridge University Press:  23 December 2013

W. T. Loomis
W. T. Loomis
Affiliation:
Harvard University
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Extract

An inscription (IG i2 115) consisting of a prelude and then of Drakon's law of homicide has long been known. The prelude dates it 409/8 B.C.; it was evidently part of the recodification of Athenian law carried out by Nikomakhos and a board of anagrapheis in most of the years 411/0–400/399 B.C. Drakon's law was on a separate stele, of which the upper part, probably about half, survives. In some period since Antiquity the marble was used as pavement, and the resulting wear has deterred study of it since the edition of 1867. Recently, however, R. S. Stroud has published a new edition of the code inscription and this has stimulated renewed interest in the Athenian law of homicide. Stroud has provided not only a new and much expanded text of the code but also some persuasive solutions to problems that have long perplexed scholars. The code deals with unpremeditated (μὴ ἐκ προνοίας) homicide. This very aspect—the precise scope of the code—receives, oddly, scant treatment. I propose to look into it.

By scope I mean what sorts of homicide were covered by the extant portion of the code. Another, and I think inevitable, way of looking at this problem is to ask, Where did the missing portion of the code, dealing with premeditated homicide, stop, and where did the surviving portion start, i.e. where was the line drawn in Athens between premeditated and unpremeditated homicide? Thus stated, the question makes it clear that one cannot deal with the problem of premeditation in vacuo; it must be examined in the context of Athenian homicide as a whole.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 92 , November 1972 , pp. 86 - 95
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1972

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References

1 Köhler, U., Hermes ii (1867) 27–36Google Scholar.

2 Stroud, R. S., Drakon's Law on Homicide (Berkeley, 1968)Google Scholar hereinafter cited as Stroud, DLH.

3 Stroud, DLH 5–6.

4 Among his more interesting conclusions are that Drakon's law on premeditated homicide, long assumed to have been inscribed on a different stone, in fact begins at the bottom of the existing fragment. He has detected parts of the rubric for this section. Stroud thinks that the stone originally was probably twice its present height, and that the rest of the law on premeditated homicide was inscribed on the now missing lower half. This would give a stele of normal proportions, and is doubtless correct.

Stroud also argues (DLH 60–64) that although the surviving inscription dates from 409/8 B.C., it was an exact republication of Drakon's law of c. 621/0 B.C. This conclusion is amply supported by the orators, e.g. Antiphon 6.2. Evidently the Athenians had an extraordinarily static homicide law, one that lasted, with minor modifications, from 621 to at least 338 B.C.

5 The present paper originally was submitted to Professor S. E. Thorne of the Harvard Law School in satisfaction of the written work requirements of the J.D. degree. I wish here to express my appreciation to Professor Thorne and his wife, Margaret Mac Veagh Thorne, for their valuable suggestions on the manuscript. I owe a special debt to Professor S. Dow who first suggested that I look into πρόνοια and who made helpful suggestions at every stage of the article's development. Any sins of omission or commission are, needless to say, my own.

6 In this background section I draw heavily on MacDowell, D. M., Athenian Homicide Law in the Age of the Orators (Manchester 1963)Google Scholar hereinafter cited as MacDowell, AHL. This is the leading work on Athenian homicide law. In this article I occasionally take issue with some of MacDowell's conclusions or (more often) amplify them, but I never could have reached these points of disagreement or amplification had I not been led through the complex of evidence presented in his amazingly compact volume.

7 IG i2 115.21, quoted infra 88.

8 The office of basileus, or king, was a survival from the hereditary kings of prehistoric Athens. By the time of Drakon, the basileus had come to be appointed annually by lot. His duties were primarily religious, and his legal duties, such as handling homicide cases, derived from their religious implications: in homicide the notion that the state had been polluted by the fatal deed. For a good discussion, see MacDowell, , AHL 33–8.Google Scholar

9 Aristotle, , Ath. Pol. 57.2Google Scholar; Antiphon 6.35–6.

10 For the evidence concerning them, see MacDowell, , AHL 36–7Google Scholar.

11 Who decided which court the case would be tried in? Stroud (DLH42–3) says the basileus made the decision on the basis of evidence adduced at the προδικασίαι. MacDowell, twice implies (AHL 36Google Scholar, 96–7) that it was the basileus, but elsewhere (AHL 45) says ‘the case went to the Palladion if the accuser, not merely the accused, said the killing was unintentional’. Although they at first appear to be contradictory, all of these statements are probably correct. The position was: (a) The law laid down which type of charge went to which court. (b) The accuser decided which type of charge he wished to bring (and the accused whether he wished to plead that the killing was lawful), (c) On the basis of (a) and (b) the basileus named the court. Once (a) and (b) were clear, (c) would be more or less automatic. At the προδικασίαι the basileus no doubt discussed the charge with the prosecuting relatives; quite often his advice must have been determinative of (b). Ultimately, however, the decision was theirs whether to prosecute in the Areopagos or the Palladion. We do know from Aristotle, (Ethika Megala 1188b 29–38Google Scholar, quoted infra 89) that they did on occasion press a charge which the Areopagos decided should have gone to the Palladion. This passage illustrates that the juries in the several courts decided only very narrow issues. The Areopagos decided only if D were guilty of intentional homicide—if not, he was acquitted of that charge. But he could still be tried in the Palladion where the jury decided the issue of unintentional homicide; here acquittal was final as a practical matter. Where the defendant admitted the killing but claimed legal justification, the case went automatically to the Delphinion, regardless of what V's relatives or the basileus thought. But again if the Delphinion decided that D had no justification, it did not go on to convict him of homicide; presumably the case was instead sent to the Areopagos or Palladion.

12 Demosthenes 23.22; Aristotle, , Ath. Pol. 57.3Google Scholar. We know from Aristotle, Ethika Megala 1188b 29–38Google Scholar, quoted infra 89 that unintentional poisoning was tried in the Palladion rather than the Areopagos.

13 Aristotle, , Ath. Pol. 57.3Google Scholar; Demosthenes 23.71.

14 For the question whether the Palladion tried charges of βούλευσιζ of intentional as well as unintentional homicide, see MacDowell, , AHL 65–9Google Scholar and n. 45 infra.

15 Aristotle, , Ath. Pol. 57.3Google Scholar; Demosthenes 23.74.

16 Demosthenes 23.77; Aristotle, , Ath. Pol. 57.3–4Google Scholar.

17 Demosthenes 23.76.

18 See, e.g., the three Tetralogies of Antiphon each of which contains two model speeches for plaintiff and defendant.

19 See, e.g., Antiphon 1.28.

20 See, e.g., the case of Euaion described by Demosthenes (21.71–5) and discussed infra 93 where the accused was convicted by a majority of only one vote.

21 Antiphon 6.3: —‘for this kind of case there is only one trial’.

22 The meaning of the word δ]ικάζεν in line 12 of the code, quoted infra 88, has been much disputed. Stroud (DLH 42–5) discusses it at length and concludes that it refers to the activity of the basileus neither at the προδικασίαι nor at the trial, but to his final rendering of the verdict.

23 This is what the defendant in Antiphon's Third Tetralogy did. See also Antiphon 5.13; Demosthenes 23.69. Professor J. H. Finley has kindly brought to my attention a possible Spartan parallel, the case of Drakontios, described in Xenophon, 's Anabasis iv 8.25Google Scholar, who as a child had slain another child with a stick, ἄκων, and had since been in exile.

24 Demosthenes 21.43; 23.69; Antiphon 2b.9.

25 Demosthenes 21.43; Lysias 1.50; Aristotle, , Ath. Pol. 47.2.Google Scholar

26 IG i2 115.11–21, edited and translated by Stroud, R. S., DLH 5–7Google Scholar.

27 Andokides 1.94, quoted infra 91.

28 What follows is not intended to be a comprehensive statement of the Anglo-American law of homicide. My attempt here is only to indicate the frame of reference which contemporary non-lawyers bring to bear when they are looking at the homicide law of another society.

29 Stroud, DLH 41.

30 IG i2 115.13–16, quoted supra 88.

31 Ibid. 16–18.

32 MacDowell, , AHL 59–60Google Scholar.

33 Ibid. 60–2.

34 IG i2 115.11.

35 Ibid. 17.

36 Stroud, DLH 41, discussed supra.

37 Aristotle, , Ethika Megala 1188b 29–38Google Scholar, translated by MacDowell, , AHL 46Google Scholar.

38 Stroud, DLH 41.

39 Demosthenes 23.72, translated by MacDowell, , AHL 120Google Scholar.

40 Of course πρόνοια means more than ἑκούσιοζ. It is not only intentional and voluntary; the prefix πρό gives it the meaning of forethought. See LSJ. But πρό need not imply prior intent to kill, as we shall see, infra, 93–4.

41 See, infra, 92.

42 We use ‘draconian’ today to mean ‘very severe’. On the whole Drakon's homicide laws are no more severe than our own, although, as we shall see infra 92, the possibility of exile for accidental homicide seems rather harsh. Stroud (DLH 77–9) attributes Drakon's reputation, even in classical times, for extreme severity to his other, less enduring laws, e.g. the one prescribing the death penalty for theft of fruit or vegetables.

43 Of course the pardon was not inevitable: it had to be secured from the dead man's family for the killer to escape exile.

44 Antiphon 6.16; Andokides 1.94; Plato, Laws 871e–72b.

45 There is no doubt that βούλευσιζ of unintentional homicide was tried at the Palladion, but there is some question about βούλευσιζ of intentional homicide. MacDowell, (AHL 64–9Google Scholar) reviews all the evidence and concludes that it also was tried at the Palladion. I am not entirely convinced by his analysis, particularly of the passage about the father of the priestess from Brauron, quoted and discussed infra. How can he be guilty of intentional wounding if he did not lay a hand on V? It seems better to interpret his ‘banishment by the Areopagos’ as voluntary exile to avoid the more severe penalty imposed by that body.

46 For this young lady's precise status, see Bushala, E. W.AJP xc (1969) 65–72Google Scholar.

47 Antiphon 1. 26.

48 Andokides 1. 94, translated by MacDowell, , AHL 64Google Scholar.

49 Demosthenes 54.25, translated by Murray, A. T., Demosthenes, , Private Orations (Loeb Classical Library, London 1939), Vol. iii 145Google Scholar.

50 See n. 45 supra.

51 Aristotle, , Ethika Megala 1188b 36Google Scholar, quoted and translated supra 89.

52 Today this might be a workmen's compensation case.

53 Antiphon 6.16.

54 Ibid. 19.

55 This set of four speeches, like the Third Tetralogy discussed infra 93, was never used in a real case but instead was a pedagogical device for young orators. As a teaching device, however, it was based on current practice and is a valuable source of our knowledge of Athenian procedure.

56 Plutarch, , Perikles 36.3Google Scholar.

57 Demosthenes 54.25.

58 Ibid. 28.

59 Antiphon 4c.4.

60 D could have elected to have this case tried in the Delphinion on the ground that he acted in lawful self-defence. But since the Delphinion was only for those D's who admitted the killing, albeit with justification, he would have been precluded from asserting the defences that (a) the physician's negligence was responsible, and (b) V himself was responsible.

61 Demosthenes 21. 71–5.

62 MacDowell, , AHL 59–60Google Scholar.

63 Ibid. 60–2.

64 Supra 90–91.

65 Supra 92.

66 Although the Athenians did not have our problem of deciding whether a homicide was premeditated, they did, as the two self-defence cases illustrate, share our problem of deciding whether there was sufficient excuse or justification for a homicide.

67 E.g. the examples of the woman with the love philtre and the choregos, supra 92.

68 MacDowell, (AHL 60–2Google Scholar) notes that where D made a plan that resulted in death and in which he was the ultimate actor, he would doubtless have been charged with homicide rather than βούλευσις. He also notes that where wounding was the result, the charge would have been intentional wounding. Further on (AHL 62) he notes ‘we several times find βούλευσις contrasted with χειρὶ or αὐτόχειρ, “with one's own hand”.’ From this it follows that βούλευσις prosecutions were only for those D's who had someone else carry out their plans. Once this is clear, it becomes unnecessary to discuss, as MacDowell painstakingly does, the various possibilities of D being guilty of βούλευσις of homicides in which he takes part.

69 MacDowell, , AHL 60–2Google Scholar. In connection with his examples of βούλευσις, it might be noted that dozens of variations could be imagined. In my opinion, they are all taken care of by the following two rules: (1) D is not to be prosecuted for βούλευσις if he killed V himself; (2) All βούλευσις is of intentional homicide unless D's ‘plan’ intended no harm at all. One problem arises in connection with a case where D makes a plan to kill, or harm, V which is not carried out at all. (A wounding, of course, would be actionable.) Harpokration, (Lex. Seg. 220.12–14Google Scholar) says that this can be prosecuted as βούλευσις but this is solitary, late, and unreliable evidence. In the absence of any other affirmative evidence it seems unlikely to me that any charge at all was pressed.

70 MacDowell, , AHL 60Google Scholar.

71 Supra 92.

72 One type of negligence was not actionable, that of a doctor under whose care a patient died. See Antiphon 4c.5. But medical negligence is usually not so extreme as the recklessness here under discussion.

73 See n. 11 supra.

74 Lysias 3.42, 47.

75 MacDowell, , AHL 1–7Google Scholar, 141–50.

76 For a good discussion of this duty, see MacDowell, , AHL 8–11Google Scholar.

77 Could V's relatives pardon D before trial? As a practical matter they probably could, by not bringing a charge against him, although D's safety would be forever in jeopardy since, according to Lysias 13.83, there was no statute of limitations for homicide prosecutions. But pardon by its very definition implies a previous conviction and the evidence of Drakon's code, quoted and translated supra 88 and Demosthenes 23.72, quoted and translated infra, support this.

78 Demosthenes 23.72, translated by MacDowell, , AHL 46Google Scholar.