HANSEN, MOGENS HERMAN, The Prosecution of Homicide in Athens: a Reply , Greek, Roman and Byzantine Studies, 22:1 (1981:Spring) p.11 The Prosecution of Homicide in Athens: A Reply Mogens Herman Hansen I N G RBS 20 Michael Gagarin published a penetrating and stimulating article about the prosecution of homicide in Athens. After a long discussion of the dike phonou, he devotes two shorter sections to the apagoge phonou and the graphe phonou. In both sections he agrees with MacDowell and rejects my inter­ pretation of the procedures. 1 I am not persuaded, however, and in this article I shall offer new arguments in support of my views. After a brief discussion of one of the major problems raised by the dike phonou I shall examine further the graphe phonou and the various forms of apagoge used against homicides. Let me add in advance, however, that I fully accept one of Gagarin's objections: the evidence is not sufficient to support my opinion that the so­ called apagoge phonou (Dem. 23.80) was introduced as late as in the first half of the fourth century B.C., and so I retract the view. 2 I. The JiKIl fJJOVOV In a judicious account of the dike phonou Gagarin discusses, inter alia, whether the provision that the relatives are to prosecute implies a negative rule that other persons are prevented from prosecuting. He concludes that the law was not explicit, and I agree. Nevertheless, although there is very little evidence to go on, he prefers the view that 'relatives are to prosecute' is a rule which does not absolutely prohibit non-relatives from prosecuting (304). Here I disagree for the following reason. The rule that prosecution in a dike phonou rested with the family of the victim is in fact a necessary corollary of the general I The following works will be cited by author's name alone: M. GAGARIN, "The Prosecu­ tion of Homicide in Athens," GRBS 20 (1979) 301-23; M. H. HANSEN, Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes (Odense 1976); D. M. MAC­ DOWELL, Athenian Homicide Law in the Age of the Orators (Manchester 1963). 2 Hansen 102-03; Gagarin 320 n.59. 11 HANSEN, MOGENS HERMAN, The Prosecution of Homicide in Athens: a Reply , Greek, Roman and Byzantine Studies, 22:1 (1981:Spring) p.11 12 THE PROSECUTION OF HOMICIDE IN ATHENS rule that prosecution in a dike rested with the wronged person. And so Gagarin's view that non-relatives were not absolutely pro­ hibited from bringing a dike phonou implies that other persons than the wronged person were not absolutely prohibited from bringing an ordinary dike, e.g., a biK1J aiKeiac;" a MK1J KaK1Jyopiac;" etc. 3 Now this implication would entail a correction of the ac­ cepted view about the distinction between private and public ac­ tions in the Athenian administration of justice: "a MK1J in the narrower sense could only be initiated by the wronged person, or his or her KUPIOc;" or in homicide cases by the dead person's rela­ tives in an elaborately prescribed order." This is Harrison's state­ ment of the accepted view, and MacDowell writes in his recent manual that, in a dike idia, "only the person who claimed that he suffered some wrong or deprivation could be the prosecutor."4 But is the accepted view correct? MacDowell and Harrison state the rule as a simple fact without reference to the sources or to other scholars. Bonner and Smith and Busolt/Swoboda both refer to Lipsius,s and his chapter "Ein­ teilung der Klagen" is in fact the foundation upon which all other scholars dealing with the Athenian administration of justice have based their accounts of dike and graphe. 6 On page 239 Lipsius states: "1m engeren Sinne aber heisst MK1J der Rechtsstreit oder die Klage, die ein ausschliesslich privates Interesse verfolgt und darum nur von dem Verletzen angestellt werden darf. Mit genauerem Aus­ druck aber wird sie MK1J iMa genannt und der b1Jl1oaia biK1J gegen­ iibergestellt, die von jedem vollberechtigten Athener anhangig gemacht werden kann," and in notes 6 and 7 Lipsius adduces some twenty references to the sources in support of the distinction drawn 3 Gagarin has argued (in conversation, December 1980) that this implication is not necessary: in an ordinary dike there was always a wronged person who could prosecute, whereas in a homicide case there may have been no living relative, in which case there was no one to prosecute except outsiders. I suggest, however, that in this situation the right to prosecute would pass to the phrateres (IC P 115.22-23), so that in homicide cases as in all other dikai there was always some person specifically entitled to prosecute. 4 A. R. W. Harrison, The Law of Athens II (Oxford 1971) 76; D. M. MacDowell, The Law in Classical Athens (London 1978) 58. 5 R. J. Bonner and G. Smith, The Administration of Justice from Homer to Aristotle II (Chicago 1930) 7; G. Busolt and H. Swoboda, Criechische Staatskunde II (Munich 1926) 1176; J. H. Lipsius, Das attische Recht und Rechtsverfahren I-III (Leipzig 1905-15). 6 Lipsius (supra n.5) II 237-62. In works older than Lipsius' manual the rule is stated with no references to the sources or with references pertaining only to the dike phonou, e.g., G. Gilbert, Handbuch der griechischen Staatsalterthiimer P (Leipzig 1893) 454; M. H. E. Meier and G. F. Schomann, Der attische Process (Berlin 1883-87) 199 with n.10. HANSEN, MOGENS HERMAN, The Prosecution of Homicide in Athens: a Reply , Greek, Roman and Byzantine Studies, 22:1 (1981:Spring) p.11 MOGENS HERMAN HANSEN 13 between dike 'im engeren Sinne' and demosia dike = demosios agon, graphe, etc. But checking the references one has to admit that all the sources adduced are inadequate. They prove only that a graphe might be brought by any citizen or that a dike phonou was initiated by the family: none shows that the right to bring an ordinary dike was restricted to the wronged person. Does that mean that we shall have to give up the basic assumption made by all scholars about the classification of actions in Athens? Are we to assume that an ordinary dike might be brought (e.g.) by the wronged person's relatives or even by one of his friends? To the contrary, Lipsius was right, but he must have forgotten to quote the crucial source, Isocrates 20.2: cvprjacre be Kai rous Bivras !JlllV roue; VOIlOVs vnep nov aWllarwv llaAlara anovbaaavrae;. npwrov Ilev yap TCcpi lloVOV rovrov rwv dbzKYJllarwv Kai JiKas Kai yparpas avcv napaKarapoA~e; eTCoi,wav, ... eTCetra nov f.1iv (UAWV eYKA1Jf.16.rwv avrep rQj naBovTl IlOVOV 6 bpaaas vnoblKos eaTlv· ncpi be rijs vppcws, Ws KOlVOU rou npaYllaros ovros , §~caTl rep POVAOlliwp rwv nOAlrwv ypalj/allivcp npos TOUs BcalloBeras dad.Bclv d s Vilas. This passage proves that a dike could be brought only by the wronged person, and accordingly I favour the traditional view of the dike phonou, that it could be initiated only by the relatives of the victim. I agree with Gagarin that the evidence concerning prosecution in a dike phonou is inconclusive. 7 And so the best foundation for an in­ terpretation is the analogy to an ordinary dike, which could be brought only by the wronged person. Similarly, the bringing of a dike phonou was probably restricted to the relatives. If other per­ sons were to prosecute on behalf of the victim they would have to avail themselves of some kind of public action, either an apagoge or a graphe, to which procedures I now turn. II. The Use of yparp1j in Homicide Cases In Apagoge 108-12 I demonstrated the existence of a ypaqJ~ TpavllaTOe; eK npovoias heard by the council of the Areopagus and, 7 Gagarin's interpretation of what the law implies (303-04) is not cogent. His argument is that the rule 'relatives are expected to prosecute' implies as its opposite rule 'non-relatives are not expected to prosecute', and so there was no prohibition of a dike phonou brought by non-relatives. Admittedly this is a possible interpretation of the law, but it is based on a paraphrase, and the rule may just as well be paraphrased 'relatives are allowed to prose­ cute', in which case the opposite rule implied is 'non-relatives are not allowed to prosecute', and so non-relatives are in fact prohibited from bringing a dike phonou. HANSEN, MOGENS HERMAN, The Prosecution of Homicide in Athens: a Reply , Greek, Roman and Byzantine Studies, 22:1 (1981:Spring) p.11 14 THE PROSECUTION OF HOMICIDE IN ATHENS to the best of my knowledge, no scholar has attempted to chal­ lenge this part of my argument. Next, I suggested that a yparp~ rpaDJ.1arOe; eK npovoiae; implies a fortiori the existence of a yparp~ rpovov. In order to evade the unpleasant recognition of ypa(fJai in homicide cases Gagarin follows MacDowell in rejecting my in­ fer~nce: "the fact that the graphe procedure was used for rpav{la eK npovoiae; does not prove that it was used for homicide tOO."8 This objection is based on the assumption that a prosecution for rpav{la 8K npovoiac; was not a homicide trial, a view already taken by MacDowell in his Athenian Homicide Law. Quoting Dem. 23.22 and Arist. Ath.Pol. 57.3, he proceeds (44): "Since I am at present concerned only with homicide, I shall say nothing about the inclusion of arson and wounding in the list. Nor shall I discuss cases of the destruction of sacred olive-trees, which were tried by the Areopagos until some date in the fourth century." So Mac­ Dowell, followed by Gagarin and Lalonde, would separate rpav{la and nvpKafa from rpovoc; and (fJapJ.1aKeia; the result is in my opinion a distorted picture of Athenian homicide law. 1. The crucial source is the law itself, quoted in Demosthenes' speech Against Aristocrates 22: b,Ka(elV be r~v POVA~V r~v 8V 'Apeicp naycp rpOVOV Kai rpaD{laroc; 8K npovoiac; Kai nvpKaiae; Kai (fJaPJ.1QXWv, euv rze; anoKreiv1j bODe;. Now the heading of this and the following quotations from the law is V0J.10e; eK rwv rpOVIKWV vO{lwv rwv e