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 [pg 231] 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 [pg 232] 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 [pg 233] 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, [pg 235] 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 [pg 236] 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 [pg 238] 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 [pg 239] 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, [pg 240] 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, [pg 241] 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.