Chapter XI.

§ 1. Simplicity of the Law of Sparta. § 2. Spartan System of

Judicature. § 3. Penal system of Sparta: fine, infamy, § 4. exile,

and death. § 5. Origin of the laws respecting the penalty of death

in the Doric states. § 6. Connexion of Locri with the Doric race.

§ 7. Laws of Zaleucus.

1. The law, as well as the economy, of the Dorians, seems to bear a

character of very great antiquity, as far as our scanty means of

information permit us to judge. It exhibits strong marks of the early time

at which it originated, and it is impossible not to recognise in it a

certain loftiness and severity of character. For this reason it was ill

suited to the circumstances of the more unrestrained and active manners of

later times, and only owed its continuance to the isolated situation in

which Sparta succeeded in keeping herself. Thus the civil law was less

definite and settled here than in any other part of Greece in early times,

as property was, according to the Spartan notions, to be looked upon as a

matter of indifference; in the decrees and institutions attributed to

Lycurgus, no mention was made of this point, and the ephors were permitted

to judge according to their own notions of equity. The ancient legislators

had an evident repugnance to any strict regulations on this subject; thus

Zaleucus, who, however, first made particular enactments concerning the

right of property,(1023) expressly interdicted certificates of debt.(1024)

The laws of that early period had a much more personal tendency, and

rather regulated the actions of every individual by means of the national

customs. It was nearly indifferent whether those actions immediately

concerned other persons or not; the whole state was considered as injured

and attacked when any individual did not comply with the general

principles. Hence the ancient courts of justice exercised a

superintendence over the manners of the citizens, as, for instance, the

Areopagus at Athens, and the Gerusia at Sparta: hence the extensive

interference of the law with the most private relations, such, for

example, as marriage. But the history of nations is a history of the

progress of individual liberty; among the Greeks of later times the laws

necessarily lost this binding force, and obtained a negative character, by

which they only so far restrained the actions of each individual, as was

necessary for the co-existence of other members of the state. In Sparta,

however, law and custom retained nearly equal power; it will therefore be

impossible to treat of them separately, and we must be satisfied with some

observations upon the judicial system in Sparta and other Doric states.

2. The courts of justice in Sparta have already been spoken of in several

places.(1025) The Gerusia decided all criminal causes, together with most

others which affected the conduct of the citizens; the other jurisdiction

was divided among the magistrates according to the branches of their

administration.(1026) The ephors decided all disputes concerning money and

property, as well as in accusations against responsible officers, provided

they were not of a criminal nature; the kings decided in causes of

heiresses and adoptions, and the bidiæi in disputes arising at the

gymnasia. Public offences, particularly of the kings and other

authorities, were decided by a supreme court of judicature.(1027) The

popular assembly had probably no judicial functions; disputes concerning

the succession to the throne were referred to it only after ineffectual

attempts to settle them, and it then passed a decree.(1028) The assembly

took the case of those who fled from their ranks at the battle of Leuctra

out of the hands of the regular court, by nominating an extraordinary

nomothetes for the occasion, and afterwards confirming his proposal.(1029)

It does not appear that the practice of ostracism was known in the Doric

states before the destruction of the early constitution.(1030) Arbitrators

were also employed at Sparta for the decision of private cases, as in the

Homeric time;(1031) but whether they were publicly appointed, as in

Athens, is not known.

At Sparta, as well as at Athens, the parties interested were, of course,

entitled to accuse in private causes; and in criminal cases the next of

kin; it cannot however be supposed that in Sparta, as in Athens, every

citizen of the state was empowered to institute a public action; as a

regulation of this kind appears too inseparably connected with democracy.

Private individuals were therefore only permitted to lay an information

before a magistrate, which was also allowed to the Helots;(1032) the

action being conducted, as we find to have been so frequently the case

with the ephors, by some public officer. In the judicial procedure of

Sparta, it is probable that much of the ancient Grecian simplicity

remained, which Aristotle for example remarks in the criminal proceedings

of the Æolic Cume, where in trials for murder witnesses from the family of

the murdered person were sufficient to prove the offence.(1033) In the

ancient laws of Rhadamanthus, disputes were generally decided in a very

summary manner by oath,(1034) and the legislation of Charondas for the

Chalcidean colonies was the first that instituted inquiries concerning

false testimony.(1035)

The laws by which the decisions were regulated were supposed to live in

the breasts of the magistrates themselves; nor was there any written law

during the flourishing times of Sparta. The interpreters of the laws of

Lycurgus, who occur at a late period,(1036) appear to imply the existence

of a written code, if they are compared with the Syracusan interpreters of

the code of Diocles;(1037) yet it is possible that they may have merely

given answers from an innate knowledge of the traditional law, like the

ἐξηγηταὶ τῶν πατρίων at Athens.(1038) Thus also it was allowed to the

judges to impose punishments according to their own pleasure; the laws of

Sparta contained no special enactments on this point, which were first

added by Zaleucus to his code.(1039)

3. Among the various punishments which occur, fines levied on property

would appear ridiculous in any other state than Sparta on account of their

extreme lowness. Perseus in his treatise on the Lacedæmonian government,

says, that “the judge immediately condemns the rich man to the loss of a

dessert (ἐπάïκλον); the poor he orders to bring a reed, or a rush, or

laurel-leaves for the public banquet.” Nicocles the Lacedæmonian says,

upon the same subject, “when the ephor has heard all the witnesses, he

either acquits the defendant or condemns him: and the successful plaintiff

slightly fines him in a cake, or some laurel-leaves,” which were used to

give a relish to the cakes.(1040) From this it is evident that actions

were heard before the ephors, and probably in private cases, in which the

plaintiff assessed the fine (ἀγῶνες τιμητοὶ). Large fines of money in

early times only occur as being paid by the kings, but afterwards by

generals, harmosts, &c.(1041) The defendant was frequently condemned to

leave the country.(1042) It is hardly possible that a complete

confiscation of property, extending to land, could have been permitted in

Sparta,(1043) although it is mentioned in Argos and Phlius. Imprisonment

was never employed in Sparta as a penalty for a free citizen, but only as

a means of preventing the escape of an accused person. Corporal punishment

preceded, as in the case of Cinadon, the infliction of death; but was not

a separate penalty.(1044) On the other hand, infamy (ἀτιμία) was the more

frequently used as a punishment, from the deep impression which it made on

the mind of a Spartan.(1045) The highest degree of this infamy, as it

appears, fell upon the coward, who either left the ranks and fled from

battle, or returned without the rest of the army, as Aristodemus from

Thermopylæ.(1046) A person thus excommunicated could fill no public

office; had the lowest place in the choruses; in the game of ball neither

party would have him on their side; he could find no competitor in the

gymnasia, no companion of his tent in the field. The flame of his hearth

was extinguished, as he was unable to obtain fire from any person. He was

compelled to maintain his daughters at home, or, if unmarried, to live in

an empty house, since no one would contract any alliance with him. In the

street he yielded to every one the way, and gave up his seat to an

inferior in age; his lost honour was at first sight evident to every one

from his ragged cloak, and his half slavery, from his half-shorn head.

Hence many persons have asked, what merit it was in a Spartan if he

preferred death to flight, since a punishment far worse than death awaited

the coward? It is indeed true, that the merit of each individual Spartan

was less if he preferred dying at his post to saving himself by flight,

than if public opinion had not affixed so severe a penalty to the offence

of the cowardly soldier. But this argument would be equally good against

_all_ public laws and ordinances, and even against the expression of

national feelings and opinion. For the looser the bond of social union,

and the more anarchical the condition of any state, the greater is the

individual merit of any citizen who nevertheless observes the rules of

morality and justice, and the praise of virtue is more considered as his

particular due. Whereas, when each citizen listens to the voice of public

opinion, and feels himself, as it were, bound to support the national

power, a large part of the merit of individual excellence is taken away

from the individual, and bestowed on the public institutions.

A less severe description of infamy was the lot of prisoners taken in war,

who were not subject to the imputation of cowardice, as, for instance, the

captives at Sphacteria. They were not allowed to fill any public office,

and were deprived of the privilege of buying and selling. The other

degrading restrictions were not, however, enforced, and the time of the

punishment was limited.(1047)

Among this class of punishments may be included the penalty of the

unmarried, who were deprived of the customary honours of old age. Young

men were also punished for various offences, by being compelled to sing

defamatory songs against themselves, a custom corresponding with the

inclination of the Doric race to mirth and merriment, under which a very

serious character was frequently concealed. In the code of Charondas,

public ridicule was also assigned as the penalty of the adulterer and

busybody (πολυπράγμων),(1048) and that for sycophants and cowards was of a

similar character.(1049)

4. Banishment was probably never a regular punishment in Sparta, for the

law could hardly have compelled a person to do that which, if he had done

it voluntarily, would have been punished with death.(1050) Murderers,

particularly if their crime was unpremeditated, were sometimes forced to

fly the country;(1051) but this cannot be considered as a case in point,

for the flight only took place for the purpose of avoiding the revenge of

relations. On the other hand, banishment exempted a person from the most

severe punishments,(1052) and, according to the principles of the Greeks,

preserved him from every persecution; so that even a person who was

declared an outlaw by the Amphictyons was thought secure when out of the

country.(1053) There is no instance in the history of Sparta of any

individual being banished for political reasons, so long as the ancient

constitution continued.

The punishment of death was inflicted either by strangulation in a room of

the public prison called Δεξὰς,(1054) or by throwing the criminal into the

Cæadas, a ceremony which was always performed by night.(1055) It was also

in ancient times the law of Athens, that no execution should take place in

the day-time.(1056) So also the senate of the Æolic Cume (whose antiquated

institutions have been already mentioned) decided criminal cases during

the night, and voted with covered balls,(1057) nearly in the same manner

as the kings of the people of Atlantis, in the Critias of Plato.(1058)

These must not be considered as oligarchical contrivances for the

undisturbed execution of severe sentences, but are to be attributed to the

dread of pronouncing and putting into execution the sentence of death, and

to an unwillingness to bring the terrors of that penalty before the eye of

day. A similar repugnance is expressed in the practice of the Spartan

Gerusia, which never passed sentence of death without several days’

deliberation, nor ever without the most conclusive testimony; the person

who was acquitted could however be always subjected to a fresh

examination.(1059) Notwithstanding this horror of shedding blood, the

punishments in the early Greek states were more severe than under the

Athenian republic. The orator Lycurgus(1060) ascribes to the ancient

legislators in general the principle of the laws of Draco, to punish _all_

actions with the same severity, whether the evil which they caused was

great or small. This severity partly owed its origin to a supposition that

the public rights were injured, and not the property or the peace of an

individual. Thus the ancient law of Tenedos (which, together with the

worship of Apollo there established, appears to have been derived from

Crete) punished adulterers by decapitation with an axe;(1061) the same

offence was punished, according to the code of Zaleucus, by the loss of an

eye,(1062) and in Sparta it was guarded against by laws of extreme

severity.(1063)

5. The laws respecting the penalty of death, which prevailed in the

Grecian, and especially in the Doric states, were derived from Delphi.

They were entirely founded upon the ancient rite of expiation, by which a

limit was first set to the fury of revenge, and a fixed mode of procedure

in such cases established.(1064) Any person killing another without

premeditation in the gymnastic contests and public battles was, according

to the law which (as Plato states)(1065) came from Delphi, immediately

released from all guilt, when he had been purified: it is however

probable, that much of what the philosopher recommends in other cases was

derived from the institutions of Draco, as well as from the Delphian laws,

which were actually administered in the latter state by the Pythian court

of justice.(1066) To what extent reconciliation with kinsmen by the

payment of a fine was permitted, and in what cases the punishment of death

was made compulsory, cannot be ascertained. The Delphian court having

unjustly condemned Æsop to death, sentenced itself to the payment of a

fine, and discovered some descendants or kinsmen of their victim, to whom

the money was paid.(1067) The Delphian institutions were doubtless

connected with those of Crete, where Rhadamanthus was reported by ancient

tradition to have first established courts of justice, and a system of

law,(1068) the larger and more important part of which, in early times, is

always the criminal law. Now as Rhadamanthus is said to have made exact

retaliation the fundamental principle of his code,(1069) it cannot be

doubted, after what has been said in the second book on the connexion of

the worship of Apollo and its expiatory rites with Crete, that in this

island the harshness of that principle was early softened by religious

ceremonies, in which victims and libations took the place of the

punishment which should have fallen on the head of the offender himself.

6. In the present chapter we have frequently had occasion to mention the

laws of Zaleucus (the earliest written code which existed in

Greece),(1070) actuated by a belief that they were of Doric origin. The

Epizephyrian Locrians, amongst whom these laws were in force, were indeed

for the most part descendants of the Ozolian and Opuntian Locrians.(1071)

Aristotle describes them as a collected rabble, in the true spirit of a

mythologist, carrying to the extreme the opposition between recent

regularity and early anarchy. These Locrians, however, at the very first

establishment of their city, received the Doric customs, Syracusans from

Corinth having contributed largely to its foundation,(1072) besides which

the Spartans are said to have colonized Locri during the first Messenian

war. Although the time may be doubtful, it is an additional confirmation

of the fact, that in an ancient war with the inhabitants of Croton, the

Locrians applied for assistance to the Spartans, who promised them the

assistance of their gods of war, the Tyndaridæ. Locri was therefore

considered a Doric state, a character which was likewise preserved in its

dialect. The constitution was also an oligarchy,(1073) in the hands

apparently of a number of Doric and Locrian families. We find in this

state, as well as in its mother-city Opus, the hundred families who, by

virtue of their nobility, enjoyed a large share in the government.(1074)

But that the aristocracy was united with a timocracy appears to me to be

proved by the senate of a thousand; which, under the presidency of the

cosmopolis, constituted a supreme court of justice,(1075) and appears to

have been formed in the manner stated, if we may judge from the analogy of

the senates of Rhegium and Agrigentum: which argument seems to have the

greater weight, as such numerous councils of an aristocratic character do

not appear to have existed in Greece, and they were evidently not

democratic.

7. Now with regard to the laws themselves which Zaleucus gave to this

state about the 29th Olympiad,(1076) the testimony of Ephorus deserves

particular attention, that they were founded upon the institutions of

Crete, Sparta, and the Areopagus, and upon those of the latter in criminal

law.(1077) For this reason Zaleucus is brought into connexion with

Thaletas, the expiatory priest of Crete, and the spirit of his laws suited

the Pythagoreans (who proceeded upon the same Doric usages and maxims),

and in later days Pindar(1078) and Plato.(1079) The prohibition to all

citizens to leave their country, and to dwell in foreign states,(1080) is

of genuine Doric, and therefore Spartan character;(1081) an institution

which forms the other side of the Xenelasia. Of the same nature also is

the firmness with which the legislation was maintained, and every change

guarded against;(1082) they laboured to resist in every manner the Ionic

spirit of innovation; and if understood with a slight allowance, it may be

true that every person arriving at Locri was punished, who inquired after

novelties.(1083) In the same spirit are the measures adopted for securing

as far as possible the inalienability of landed property.(1084) The same

character is shown in the strict sumptuary laws,(1085) and the

superintendence of public morals exercised by the nomophylaces, who were,

for example, empowered to admonish and to punish slanderers.(1086) A

certain progress is, however, shown in the rude attempts at a law of

property, and a more accurate assignment of punishments.(1087) It is

remarkable that both Zaleucus and Charondas annexed a sort of

recommendation to particular laws:(1088) whereas nothing can be a greater

proof of the total failure of a system of laws, than when an endeavour is

made to demonstrate the expediency of arrangements, the truth and

necessity of which should be self-evident. This statement must not,

however, be thus understood: the meaning is, that all the laws were by a

short introduction referred to some general principle; such, for example,

as “In order not to offend the gods of the families.” “In order that the

state may be well administered, and according to the laws of our fathers.”

“Trusting that it will be salutary to the people,” (λώιον καὶ ἄμεινον, as

the Delphic oracle says on some occasion(1089)), &c.; which seem to me to

be rather ancient formulas, suited to the simplicity of the time, and

inserted from a vague religious feeling, than intended logically to

establish, to the satisfaction of the people, the wisdom and expediency of

the new laws.

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