[288] Plato, Legg. ix. p. 855 C.
Compare the penalties inflicted by Plato with those which were inflicted in Attic procedure. Meier und Schömann, Der Attische Prozess, pp. 739-740 seq. There is considerable difference between the two, arising to a great degree out of Plato’s peculiar institution about the unalterable number of lots of land (5040) and of citizen families — as well as out of his fixation of maximum and minimum of property. Flogging or beating is prescribed by Plato, but had no place at Athens: ἀτιμία was a frequent punishment at Athens: Plato’s substitute for it seems to be the pillory — τινὰς ἀμόρφους ἕδρας. Fine was frequent at Athens as a punishment: Plato is obliged to employ it sparingly.
[289] Plato, Legg. ix. p. 856 D.
Theft punished by pœna dupli. General exhortation founded by Plato upon this enactment.
Theft. — Plato next adverts to theft, and prescribes that the punishment for a convicted thief shall be one and the same in all cases — to compensate the party robbed to the extent of double the value of the property, or to be imprisoned until he does so.[290] But upon a question upon this being raised, how far one and the same pœna dupli, neither more nor less, can be properly applied to all cases of theft, we are carried (according to the usual unsystematic manner of the Platonic dialogue) into a general discussion on the principles of penal legislation. We are reminded that the Platonic lawgiver looks beyond the narrow and defective objects to which all other lawgivers have hitherto unwisely confined themselves.[291] He is under no pressing necessity to legislate at once: he can afford time for preliminary discussion and exposition: he desires to instruct his citizens respecting right and wrong, as well as to constrain their acts by penalty.[292] As he is better qualified than the poets to enlighten them about the just and honourable, so the principles which he lays down ought to have more weight than the verses of Homer or Tyrtæus.[293] In regard to Justice and Injustice generally, there are points on which Plato differs from the public, and also points on which the public are at variance with themselves. For example, every one is unanimous in affirming that whatever is just is also beautiful or honourable. But if this be true, then not only what is justly done, but also what is justly suffered, is beautiful or honourable. Now the penalty of death, inflicted on the sacrilegious person, is justly inflicted. It must therefore be beautiful or honourable: yet every one agrees in declaring it to be shocking and infamous. Here there is an inconsistency or contradiction in the opinions of the public themselves.[294]
[290] Plato, Legg. ix. p. 857 A, xii. p. 941. The Solonian Law at Athens provided, that if a man was sued for theft under the ἰδία δίκη κλοπῆς, he should be condemned to the pœna dupli and to a certain προστίμημα besides (Demosthen. cont. Timokrat. 733-736). But it seems that the thief might be indicted by a γραφή, and then the punishment might be heavier. See Aulus Gellius, xi. 18, and chap. xi. of my ‘History of Greece,’ p. 189.
[291] Plato, Legg. ix. p. 857 C. τὰ περὶ τὴν τῶν νόμων θέσιν οὐδενὶ τρόπῳ πώποτε γέγονεν ὀρθῶς διαπεπονημένα, &c.
[292] Plato, Legg. ix. pp. 857 E, 858 A.
[293] Plato, Legg. ix. pp. 858-859.
[294] Plato, Legg. ix. pp. 859-860.