§ 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.