Plato next goes on to make regulations about orphans and guardians, and in general for cases arising out of the death of a citizen. The first question presenting itself naturally is, How far is the citizen to be allowed to direct by testament the disposition of his family and property? What restriction is to be placed upon his power of making a valid will? Many persons (Plato says) affirmed that it was unjust to impose any restriction: that the dying man had a right to make such dispositions as he chose, for his property and family after his death. Against this view Plato enters his decided protest. Each man — and still more each man’s property — belongs not to himself, but to his family and to the city: besides which, an old man’s judgment is constantly liable to be perverted by decline of faculties, disease, or the cajoleries of those around him.[426] Accordingly Plato grants only a limited liberty of testation. Here, as elsewhere, he adopts the main provisions of the Attic law, with such modifications as were required by the fundamental principles of his Magnêtic city: especially by the fixed total of 5040 lots or fundi, each untransferable and indivisible. The lot, together with the plant or stock for cultivating it,[427] must descend entire to one son: but the father, if he has more than one son, may determine by will to which of them it shall descend. If there be any one among the sons whom another citizen (being childless) is disposed to adopt, such adoption can only take place with the father’s consent. But if the father gives his consent, he cannot bequeath his own lot to the son so adopted, because two lots cannot be united in the same possessor. Whatever property the father possesses over and above his lot and its appurtenances, he may distribute by will among his other sons, in any proportion he pleases. If he dies, leaving no sons, but only daughters, he may select which of them he pleases; and may appoint by will some suitable husband, of a citizen family, to marry her and inherit his lot. If a citizen (being childless) has adopted a son out of any other family, he must bequeath to that son the whole of his property, except one-tenth part of what he possesses over and above his lot and its appurtenances: this tenth he may bequeath to any one whom he chooses.[428]
[426] Plato, Legg. xi. p. 923 B.
It is to be observed that Plato does not make any allusion to these misguiding influences operating upon an aged man, when he talks about the curse of a father against his son being constantly executed by the Gods: xi. p. 931 B.
[427] Plato, Legg. xi. p. 923 D. πλὴν τοῦ πατρῴου κλήρου καὶ τῆς περὶ τὸν κλῆρον κατασκεύης πάσης.
[428] Plato, Legg. xi. pp. 923-924. The language of Plato seems to imply that this childless citizen would not be likely to make any will, but that having adopted a son, the son so adopted would hardly be satisfied unless he inherited the whole.
If the father dies intestate, leaving only daughters, the nearest relative who has no lot of his own shall marry one of the daughters, and succeed to the lot. The nearest is the brother of the deceased; next, the brother of the deceased’s wife (paternal and maternal uncles of the maiden); next, their sons; next, the parental and maternal uncle of the deceased father, and their sons. If all these relatives be wanting, the magistrates will provide a suitable husband, in order that the lot of land may not remain unoccupied.[429] If a citizen die both intestate and childless, two of his nearest unmarried relatives, male and female, shall intermarry and succeed to his property: reckoning in the order of kinship above mentioned.[430] In thus imposing marriage as a legal obligation upon persons in a certain degree of kinship, Plato is aware that there will be individual cases of great hardship and of repugnance almost insurmountable. He treats this as unavoidable: providing however that there shall be a select judicial Board of Appeal, before which persons who feel aggrieved by the law may bring their complaints, and submit their grounds for dispensation.[431]
[429] Plato, Legg. xi. p. 924-925.
[430] Plato, Legg. xi. p. 925 C-D. These provisions appear to me not very clear.
[431] Plato, Legg. xi. p. 926 B-D. He directs also (p. 925 A) that the Dikasts shall determine the fit season when these young persons become marriageable by examining their naked bodies: that is, the males quite naked, the females half naked. A direction seemingly copied from Athenian practice, and illustrating curiously the language of Philokleon in Aristophanes, Vesp. 598. See K. F. Hermann, Vestig. Juris Domestici ap. Platonem cum Græciæ Institutis Comparata, p. 27.
Plato’s general coincidence with Attic law and its sentiment.