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to kill a friend.in "battle or ambuscade, mistaking him for an enemy ; that it was justifiable to sla}7" an adulterer if caught in ipso delicto, 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 Eratosth. caed. 94, ed. Steph.) It was lawful to kill a robber at the time when he made his attack (evdvs a.fjivv6fji.€vov) but not after. (Demosth. c.Aristocr. 620.) 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. 165 ; Andoc. de. Myst. 13, ed. Steph.) A physician was excused who caused the death of a patient by mistake or professional ignorance. (Antiph. rerpaA.. 127, ed. Steph.) This distinction, however, must be observed. Justifiable homicide left the perpetrator entirely free from pollution (staQapov}. That which, though unintentional, was not perfectly free from blame, required to be expiated. See the remarks of Antiphon in the TtrpaAoyia, b. 123.
Tt 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. (Demosth. c. Neaer. 1372.) Wilful murder was punished with death. (Antiph. de Her. caed. 130, ed. Steph. ; Demosth. c. Mid. 528.) It was the duty of the Thesmothetae to see that the sentence was executed, and of the Eleven to execute it. (Demosth. c.Aristocr. 630 ; Meier, Alt. Proc. p. 74 ; Schomann, Ant. Jur. PuU. Gr. 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. 100 ; Matth. p. 148.) So were attempts to murder (/3ouAeuo-as). But where the design was followed by the death of him whose life was plotted against, and the crime was treated as a murder, it might be punished with death, at least if it was tried in the Areio-pagus; for it is doubtful whether the minor courts (except that eV (ppearro'i') had the power of inflicting capital punishment. (Matth. p. 150 ; Schomann, Ant. Jur. PuU. Gr. p. 294 ; Meier, Ait. Proc. p. 313.) If the criminal who was banished, or who avoided his sentence by voluntary exile, returned to the country, an ei/5ei£is 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.^Evdet&s; Matth. p. 168.) The proceeding by a7ray<ayfi (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 drachms if he failed to get a fifth of the votes. (Demosth. c. Aristocr. 647 ; Meier, Ait. Proc. p. 231.) But no murderer, even after conviction, could lawfully be killed, or even arrested, in a foreign country. (Demosth. c. Aristocr. 631, 632.) The humanity of the Greeks 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, (Demosth, c. Aristocr, 647 |
PHTHORA TON ELEUTIIERON. Pollux, viiu 50 ; Harpocr. and Suidas, s. v.'
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 (e^pxecrdai) by a certain time, and by a certain route (tkkt^v 68<fo/), and to expiate their offence by certain rites. Their term of absence was called aireviavrKr/Aos. It was their duty also to appease (alSziffOai) the relations of the deceased, or if he had none within a certain degree, the members of his clan, either by presents or by humble entreaty and submission. If the convict could prevail on them, he might even return before the year had expired. The word cu5e?cr0cu is used not only of the criminal humbling himself to the relations, but also of their forgiving him. (Harpocr. 5. v. 'Tiro^oVta ; Demosth. c.Pantaen. 983, c. Ma-cart. 1069, c. Aristocr. 643 ; 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 the country or during his absence. (Demosth. c. Aristocr. 634.)
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 fyovutol vo^oi. (Demosth. c. Euerg. 1 1 6J , c.Aristocr. 636.) But it appears that the jurisdiction of the e'</)€Tcu in later times, if not soon after the legislation of Solon, was greatly abridged ; and that most of the fyoviKcu si'kcw were tried by a common jury. It is probable that the people preferred the ordinary method of trial, to which they were accustomed in other causes, criminal as well as civil, to the more aristocratical constitution of the court of etpeTcu. Their jurisdiction in the courts ej' </>peaTTo7 and eVl Upvraveicp., was, no doubt, still retained ; and there seem to have been other peculiar cases reserved for their cognizance. (Pollux, viii. 125 ; Matth. p. 158 ; Schomann, 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, is a question which has been much discussed. The strong language of Demosthenes (c. Aristocr. 641) inclines one to the latter opinion. See also Dinarchus (c. A.ristog. init.), from which it appears there was no appeal from the decision of that court. (Matth. 166 ; Platner, Proc. und Klag. vol. i.p. 27 ; Schomann, Ant. Jur. Pub.]). 301 ; Thirl wall, Gr. Hist. vol. iii. c. 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 re ligion ; for by the custom of the country the hand of the suicide was buried apart from his body. (Aesch. c. Ctes. 88, ed. Steph.) [C. R. K.j
PHORBEIA (<J>opge/a). [capistrum.]
PHORMINX (<t>6pfuy& [lyra.]
PHOROS ((popos), literally that which is brought in, was specially used to signify the tribute paid by the Attic states to Athens, which is spoken of under telos.
PHRATRIA. [CiviTAS,pp. 289, 290; tribus (greek).]
PHRYGIO. [pallium, p. 851, a] JPHTHORA TON ELEUTHERON ($0oph t&v eAei»0epw), was one of the offences that might be criminally prosecuted at Athens. The word