Laws
has no share in the administration of justice is apt to imagine that he
has no share in the state at all.' The wardens of the country, like the
Forty at Athens, also exercised judicial power in small matters, as
well as the wardens of the agora and city. The department of justice is
better organized in Plato than in an ordinary Greek state, proceeding
more by regular methods, and being more restricted to distinct duties.
The executive of Plato's Laws, like the Athenian, was different from
that of a modern civilized state. The difference chiefly consists in
this, that whereas among ourselves there are certain persons or classes
of persons set apart for the execution of the duties of government, in
ancient Greece, as in all other communities in the earlier stages of
their development, they were not equally distinguished from the rest of
the citizens. The machinery of government was never so well organized as
in the best modern states. The judicial department was not so completely
separated from the legislative, nor the executive from the judicial, nor
the people at large from the professional soldier, lawyer, or priest. To
Aristotle (Pol.) it was a question requiring serious consideration--Who
should execute a sentence? There was probably no body of police to whom
were entrusted the lives and properties of the citizens in any Hellenic
state. Hence it might be reasonably expected that every man should be
the watchman of every other, and in turn be watched by him. The ancients
do not seem to have remembered the homely adage that, 'What is every
man's business is no man's business,' or always to have thought of
applying the principle of a division of labour to the administration
of law and to government. Every Athenian was at some time or on some
occasion in his life a magistrate, judge, advocate, soldier, sailor,
policeman. He had not necessarily any private business; a good deal
of his time was taken up with the duties of office and other public
occupations. So, too, in Plato's Laws. A citizen was to interfere in a
quarrel, if older than the combatants, or to defend the outraged party,
if his junior. He was especially bound to come to the rescue of a parent
who was ill-treated by his children. He was also required to prosecute
the murderer of a kinsman. In certain cases he was allowed to arrest an
offender. He might even use violence to an abusive person. Any
citizen who was not less than thirty years of age at times exercised
a magisterial authority, to be enforced even by blows. Both in the
Magnesian state and at Athens many thousand persons must have shared
in the highest duties of government, if a section only of the Council,
consisting of thirty or of fifty persons, as in the Laws, or at
Athens after the days of Cleisthenes, held office for a month, or for
thirty-five days only. It was almost as if, in our own country, the
Ministry or the Houses of Parliament were to change every month. The
average ability of the Athenian and Magnesian councillors could not have
been very high, considering there were so many of them. And yet they
were entrusted with the performance of the most important executive
duties. In these respects the constitution of the Laws resembles Athens
far more than Sparta. All the citizens were to be, not merely soldiers,
but politicians and administrators.
(ii) There are numerous minor particulars in which the Laws of Plato
resemble those of Athens. These are less interesting than the preceding,
but they show even more strikingly how closely in the composition of his
work Plato has followed the laws and customs of his own country.
(1) Evidence. (a) At Athens a child was not allowed to give evidence
(Telfy). Plato has a similar law: 'A child shall be allowed to give
evidence only in cases of murder.' (b) At Athens an unwilling witness
might be summoned; but he was not required to appear if he was ready
to declare on oath that he knew nothing about the matter in question
(Telfy). So in the Laws. (c) Athenian law enacted that when more than
half the witnesses in a case had been convicted of perjury, there was to
be a new trial (anadikos krisis--Telfy). There is a similar provision in
the Laws. (d) False-witness was punished at Athens by atimia and a fine
(Telfy). Plato is at once more lenient and more severe: 'If a man be
twice convicted of false-witness, he shall not be required, and if
thrice, he shall not be allowed to bear witness; and if he dare to
witness after he has been convicted three times,...he shall be punished
with death.'
(2) Murder. (a) Wilful murder was punished in Athenian law by death,
perpetual exile, and confiscation of property (Telfy). Plato, too,
has the alternative of death or exile, but he does not confiscate the
murderer's property. (b) The Parricide was not allowed to escape by
going into exile at Athens (Telfy), nor, apparently, in the Laws. (c)
A homicide, if forgiven by his victim before death, received no
punishment, either at Athens (Telfy), or in the Magnesian state. In both
(Telfy) the contriver of a murder is punished as severely as the doer;
and persons accused of the crime are forbidden to enter temples or
the agora until they have been tried (Telfy). (d) At Athens slaves who
killed their masters and were caught red-handed, were not to be put to
death by the relations of the murdered man, but to be handed over to the
magistrates (Telfy). So in the Laws, the slave who is guilty of wilful
murder has a public execution: but if the murder is committed in anger,
it is punished by the kinsmen of the victim.
(3) Involuntary homicide. (a) The guilty person, according to the
Athenian law, had to go into exile, and might not return, until the
family of the man slain were conciliated. Then he must be purified
(Telfy). If he is caught before he has obtained forgiveness, he may be
put to death. These enactments reappear in the Laws. (b) The curious
provision of Plato, that a stranger who has been banished for
involuntary homicide and is subsequently wrecked upon the coast, must
'take up his abode on the sea-shore, wetting his feet in the sea, and
watching for an opportunity of sailing,' recalls the procedure of
the Judicium Phreatteum at Athens, according to which an involuntary
homicide, who, having gone into exile, is accused of a wilful murder,
was tried at Phreatto for this offence in a boat by magistrates on the
shore. (c) A still more singular law, occurring both in the Athenian
and Magnesian code, enacts that a stone or other inanimate object which
kills a man is to be tried, and cast over the border (Telfy).
(4) Justifiable or excusable homicide. Plato and Athenian law agree in
making homicide justifiable or excusable in the following cases:--(1) at
the games (Telfy); (2) in war (Telfy); (3) if the person slain was found
doing violence to a free woman (Telfy); (4) if a doctor's patient dies;
(5) in the case of a robber (Telfy); (6) in self-defence (Telfy).
(5) Impiety. Death or expulsion was the Athenian penalty for impiety
(Telfy). In the Laws it is punished in various cases by imprisonment for
five years, for life, and by death.
(6) Sacrilege. Robbery of temples at Athens was punished by death,
refusal of burial in the land, and confiscation of property (Telfy).
In the Laws the citizen who is guilty of such a crime is to 'perish
ingloriously and be cast beyond the borders of the land,' but his
property is not confiscated.
(7) Sorcery. The sorcerer at Athens was to be executed (Telfy): compare
Laws, where it is enacted that the physician who poisons and the
professional sorcerer shall be punished with death.
(8) Treason. Both at Athens and in the Laws the penalty for treason was
death (Telfy), and refusal of burial in the country (Telfy).
(9) Sheltering exiles. 'If a man receives an exile, he shall be punished
with death.' So, too, in Athenian law (Telfy.).
(10) Wounding. Athenian law compelled a man who had wounded another to
go into exile; if he returned, he was to be put to death (Telfy). Plato
only punishes the offence with death when children wound their parents
or one another, or a slave wounds his master.
(11) Bribery. Death was the punishment for taking a bribe, both
at Athens (Telfy) and in the Laws; but Athenian law offered an
alternative--the payment of a fine of ten times the amount of the bribe.
(12) Theft. Plato, like Athenian law (Telfy), punishes the theft of
public property by death; the theft of private property in both involves
a fine of double the value of the stolen goods (Telfy).
(13) Suicide. He 'who slays him who of all men, as they say, is his own
best friend,' is regarded in the same spirit by Plato and by Athenian
law. Plato would have him 'buried ingloriously on the borders of the
twelve portions of the land, in such places as are uncultivated and
nameless,' and 'no column or inscription is to mark the place of his
interment.' Athenian law enacted that the hand which did the deed should
be separated from the body and be buried apart (Telfy).
(14) Injury. In cases of wilful injury, Athenian law compelled the
guilty person to pay double the damage; in cases of involuntary injury,
simple damages (Telfy). Plato enacts that if a man wounds another in
passion, and the wound is curable, he shall pay double the damage, if
incurable or disfiguring, fourfold damages. If, however, the wounding is
accidental, he shall simply pay for the harm done.
(15) Treatment of parents. Athenian law allowed any one to indict
another for neglect or illtreatment of parents (Telfy). So Plato bids
bystanders assist a father who is assaulted by his son, and allows any
one to give information against children who neglect their parents.
(16) Execution of sentences. Both Plato and Athenian law give to the
winner of a suit power to seize the goods of the loser, if he does not
pay within the appointed time (Telfy). At Athens the penalty was also
doubled (Telfy); not so in Plato. Plato however punishes contempt of
court by death, which at Athens seems only to have been visited with a
further fine (Telfy).
(17) Property. (a) Both at Athens and in the Laws a man who has disputed
property in his possession must give the name of the person from whom he
received it (Telfy); and any one searching for lost property must enter
a house naked (Telfy), or, as Plato says, 'naked, or wearing only a
short tunic and without a girdle. (b) Athenian law, as well as Plato,
did not allow a father to disinherit his son without good reason and the
consent of impartial persons (Telfy). Neither grants to the eldest
son any special claim on the paternal estate (Telfy). In the law of
inheritance both prefer males to females (Telfy). (c) Plato and Athenian
law enacted that a tree should be planted at a fair distance from a
neighbour's property (Telfy), and that when a man could not get water,
his neighbour must supply him (Telfy). Both at Athens and in Plato there
is a law about bees, the former providing that a beehive must be set up
at not less a distance than 300 feet from a neighbour's (Telfy), and the
latter forbidding the decoying of bees.
(18) Orphans. A ward must proceed against a guardian whom he suspects
of fraud within five years of the expiration of the guardianship. This
provision is common to Plato and to Athenian law (Telfy). Further, the
latter enacted that the nearest male relation should marry or provide
a husband for an heiress (Telfy),--a point in which Plato follows it
closely.
(19) Contracts. Plato's law that 'when a man makes an agreement which he
does not fulfil, unless the agreement be of a nature which the law or
a vote of the assembly does not allow, or which he has made under the
influence of some unjust compulsion, or which he is prevented from