Antiphon, On the Murder of Herodes

LCL 308: 152-153

Go To Section
Go To Section

On the Murder of Herodes

members. Hence the elaborate precautions to insure that none came into contact with the accused. But if the φονεύς had no part in the πόλις of the victim, his blood-guilt lost this social importance; what now required satisfaction was the wrong done to a member of the community by one outside it. And for such a purpose the δίκη φόνου had never been intended.

It would seem likely a priori that some alternative procedure should appear to meet this difficulty, particularly after the growth of her empire forced Athens to some definition of the legal status of her subjects in relation to herself; and the methods used against Euxitheus meet it admirably. An alien, or at least, an alien from a subject-state, charged with the murder of an Athenian citizen can be treated as a κακοῦργος; and a charge of κακουργία allows the summary arrest of the accused and his close confinement until the day of his trial. When that day arrives, he is brought before an ordinary Heliastic court and tried as a “malefactor,” his particular malefaction being murder.

This is, I think, the reasonable conclusion from (a) the fact that the δίκη φόνου was parochial in its operation, and (b) the definite statement of Euxitheus that he was being tried as a κακοῦργος before the Heliaea, instead of as a φονεύς before the Areopagus. But we must be wary of identifying the use here made of ἔνδειξις and ἀπαγωγή with their use in certain other cases of φόνος; if a common legal principle can be detected at work, it was a fluid one, as a brief examination will show.

There are three such instances: (1) Lysias, In


On the Murder of Herodes

Agoratum. Here Dionysius arrests Agoratus for causing the death of his brother, Dionysodorus, under the Thirty by turning informer. Dionysius proceeds by lodging an information against Agoratus with the Eleven. They, however, refuse to permit his arrest until Dionysius has added the qualification ἐπ᾿ αὐτοφώρῳ ληφθείςa to his formal charge of murder. The case is tried before a Heliastic court and the penalty upon conviction is death. (2) Demosthenes, In Aristocratem (§§ 641 ff.). Here there is a detailed description of the five courts competent to try the various forms of homicide, followed by the statement that there was a sixth means of proceeding against a murderer in cases where none of the others was possible or convenient. This was by ἀπαγωγή. If the criminal was seen in the Agora or in a temple, he could be arrested at sight and thrown into prison to await trial. Should he be found guilty, the penalty was death. (3) Lycurgus, In Leocratem (§ 112). The friends of Phrynichus arrest and imprison his murderers. A clear case of ἀπαγωγή, although the absence of further details makes it impossible to say under what head the accused were tried.

Originally ἀπαγωγή was limited in its application to crimes of violence where the criminal was caught in flagrante delicto. For judicial purposes these crimes formed a single group and were known as κακουργήματα. Thieves, footpads, cutpurses, temple-robbers, kidnappers, were all κακοῦργοι, and, if caught in the act (ἐπ᾿ αὐτοφώρῳ), could be summarily arrested and in most cases punished by the Eleven on their own authority. If the crime was too serious to fall within

DOI: 10.4159/DLCL.antiphon-murder_herodes.1941