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Laws, a non-fiction book by Plato |
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The Preamble - Book 9 |
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_ THE PREAMBLE - BOOK IX Punishments of offences and modes of procedure come next in order. We have a sense of disgrace in making regulations for all the details of crime in a virtuous and well-ordered state. But seeing that we are legislating for men and not for Gods, there is no uncharitableness in apprehending that some one of our citizens may have a heart, like the seed which has touched the ox's horn, so hard as to be impenetrable to the law. Let our first enactment be directed against the robbing of temples. No well-educated citizen will be guilty of such a crime, but one of their servants, or some stranger, may, and with a view to him, and at the same time with a remoter eye to the general infirmity of human nature, I will lay down the law, beginning with a prelude. To the intending robber we will say--O sir, the complaint which troubles you is not human; but some curse has fallen upon you, inherited from the crimes of your ancestors, of which you must purge yourself: go and sacrifice to the Gods, associate with the good, avoid the wicked; and if you are cured of the fatal impulse, well; but if not, acknowledge death to be better than life, and depart. These are the accents, soft and low, in which we address the would-be criminal. And if he will not listen, then cry aloud as with the sound of a trumpet: Whosoever robs a temple, if he be a slave or foreigner shall be branded in the face and hands, and scourged, and cast naked beyond the border. And perhaps this may improve him: for the law aims either at the reformation of the criminal, or the repression of crime. No punishment is designed to inflict useless injury. But if the offender be a citizen, he must be incurable, and for him death is the only fitting penalty. His iniquity, however, shall not be visited on his children, nor shall his property be confiscated. As to the exaction of penalties, any person who is fined for an offence shall not be liable to pay the fine, unless he have property in excess of his lot. For the lots must never go uncultivated for lack of means; the guardians of the law are to provide against this. If a fine is inflicted upon a man which he cannot pay, and for which his friends are unwilling to give security, he shall be imprisoned and otherwise dishonoured. But no criminal shall go unpunished:--whether death, or imprisonment, or stripes, or fines, or the stocks, or banishment to a remote temple, be the penalty. Capital offences shall come under the cognizance of the guardians of the law, and a college of the best of the last year's magistrates. The order of suits and similar details we shall leave to the lawgivers of the future, and only determine the mode of voting. The judges are to sit in order of seniority, and the proceedings shall begin with the speeches of the plaintiff and the defendant; and then the judges, beginning with the eldest, shall ask questions and collect evidence during three days, which, at the end of each day, shall be deposited in writing under their seals on the altar of Hestia; and when they have evidence enough, after a solemn declaration that they will decide justly, they shall vote and end the case. The votes are to be given openly in the presence of the citizens. Next to religion, the preservation of the constitution is the first object of the law. The greatest enemy of the state is he who attempts to set up a tyrant, or breeds plots and conspiracies; not far below him in guilt is a magistrate who either knowingly, or in ignorance, fails to bring the offender to justice. Any one who is good for anything will give information against traitors. The mode of proceeding at such trials will be the same as at trials for sacrilege; the penalty, death. But neither in this case nor in any other is the son to bear the iniquity of the father, unless father, grandfather, great-grandfather, have all of them been capitally convicted, and then the family of the criminal are to be sent off to the country of their ancestor, retaining their property, with the exception of the lot and its fixtures. And ten are to be selected from the younger sons of the other citizens--one of whom is to be chosen by the oracle of Delphi to be heir of the lot. Our third law will be a general one, concerning the procedure and the judges in cases of treason. As regards the remaining or departure of the family of the offender, the same law shall apply equally to the traitor, the sacrilegious, and the conspirator. A thief, whether he steals much or little, must refund twice the amount, if he can do so without impairing his lot; if he cannot, he must go to prison until he either pays the plaintiff, or in case of a public theft, the city, or they agree to forgive him. 'But should all kinds of theft incur the same penalty?' You remind me of what I know--that legislation is never perfect. The men for whom laws are now made may be compared to the slave who is being doctored, according to our old image, by the unscientific doctor. For the empirical practitioner, if he chance to meet the educated physician talking to his patient, and entering into the philosophy of his disease, would burst out laughing and say, as doctors delight in doing, 'Foolish fellow, instead of curing the patient you are educating him!' 'And would he not be right?' Perhaps; and he might add, that he who discourses in our fashion preaches to the citizens instead of legislating for them. 'True.' There is, however, one advantage which we possess--that being amateurs only, we may either take the most ideal, or the most necessary and utilitarian view. 'But why offer such an alternative? As if all our legislation must be done to-day, and nothing put off until the morrow. We may surely rough-hew our materials first, and shape and place them afterwards.' That will be the natural way of proceeding. There is a further point. Of all writings either in prose or verse the writings of the legislator are the most important. For it is he who has to determine the nature of good and evil, and how they should be studied with a view to our instruction. And is it not as disgraceful for Solon and Lycurgus to lay down false precepts about the institutions of life as for Homer and Tyrtaeus? The laws of states ought to be the models of writing, and what is at variance with them should be deemed ridiculous. And we may further imagine them to express the affection and good sense of a father or mother, and not to be the fiats of a tyrant. 'Very true.' Let us enquire more particularly about sacrilege, theft and other crimes, for which we have already legislated in part. And this leads us to ask, first of all, whether we are agreed or disagreed about the nature of the honourable and just. 'To what are you referring?' I will endeavour to explain. All are agreed that justice is honourable, whether in men or things, and no one who maintains that a very ugly men who is just, is in his mind fair, would be thought extravagant. 'Very true.' But if honour is to be attributed to justice, are just sufferings honourable, or only just actions? 'What do you mean?' Our laws supply a case in point; for we enacted that the robber of temples and the traitor should die; and this was just, but the reverse of honourable. In this way does the language of the many rend asunder the just and honourable. 'That is true.' But is our own language consistent? I have already said that the evil are involuntarily evil; and the evil are the unjust. Now the voluntary cannot be the involuntary; and if you two come to me and say, 'Then shall we legislate for our city?' Of course, I shall reply.--'Then will you distinguish what crimes are voluntary and what involuntary, and shall we impose lighter penalties on the latter, and heavier on the former? Or shall we refuse to determine what is the meaning of voluntary and involuntary, and maintain that our words have come down from heaven, and that they should be at once embodied in a law?' All states legislate under the idea that there are two classes of actions, the voluntary and the involuntary, but there is great confusion about them in the minds of men; and the law can never act unless they are distinguished. Either we must abstain from affirming that unjust actions are involuntary, or explain the meaning of this statement. Believing, then, that acts of injustice cannot be divided into voluntary and involuntary, I must endeavour to find some other mode of classifying them. Hurts are voluntary and involuntary, but all hurts are not injuries: on the other hand, a benefit when wrongly conferred may be an injury. An act which gives or takes away anything is not simply just; but the legislator who has to decide whether the case is one of hurt or injury, must consider the animus of the agent; and when there is hurt, he must as far as possible, provide a remedy and reparation: but if there is injustice, he must, when compensation has been made, further endeavour to reconcile the two parties. 'Excellent.' Where injustice, like disease, is remediable, there the remedy must be applied in word or deed, with the assistance of pleasures and pains, of bounties and penalties, or any other influence which may inspire man with the love of justice, or hatred of injustice; and this is the noblest work of law. But when the legislator perceives the evil to be incurable, he will consider that the death of the offender will be a good to himself, and in two ways a good to society: first, as he becomes an example to others; secondly, because the city will be quit of a rogue; and in such a case, but in no other, the legislator will punish with death. 'There is some truth in what you say. I wish, however, that you would distinguish more clearly the difference of injury and hurt, and the complications of voluntary and involuntary.' You will admit that anger is of a violent and destructive nature? 'Certainly.' And further, that pleasure is different from anger, and has an opposite power, working by persuasion and deceit? 'Yes.' Ignorance is the third source of crimes; this is of two kinds--simple ignorance and ignorance doubled by conceit of knowledge; the latter, when accompanied with power, is a source of terrible errors, but is excusable when only weak and childish. 'True.' We often say that one man masters, and another is mastered by pleasure and anger. 'Just so.' But no one says that one man masters, and another is mastered by ignorance. 'You are right.' All these motives actuate men and sometimes drive them in different ways. 'That is so.' Now, then, I am in a position to define the nature of just and unjust. By injustice I mean the dominion of anger and fear, pleasure and pain, envy and desire, in the soul, whether doing harm or not: by justice I mean the rule of the opinion of the best, whether in states or individuals, extending to the whole of life; although actions done in error are often thought to be involuntary injustice. No controversy need be raised about names at present; we are only desirous of fixing in our memories the heads of error. And the pain which is called fear and anger is our first head of error; the second is the class of pleasures and desires; and the third, of hopes which aim at true opinion about the best;--this latter falls into three divisions (i.e. (1) when accompanied by simple ignorance, (2) when accompanied by conceit of wisdom combined with power, or (3) with weakness), so that there are in all five. And the laws relating to them may be summed up under two heads, laws which deal with acts of open violence and with acts of deceit; to which may be added acts both violent and deceitful, and these last should be visited with the utmost rigour of the law. 'Very properly.' Let us now return to the enactment of laws. We have treated of sacrilege, and of conspiracy, and of treason. Any of these crimes may be committed by a person not in his right mind, or in the second childhood of old age. If this is proved to be the fact before the judges, the person in question shall only have to pay for the injury, and not be punished further, unless he have on his hands the stain of blood. In this case he shall be exiled for a year, and if he return before the expiration of the year, he shall be retained in the public prison two years. Homicides may be divided into voluntary and involuntary: and first of involuntary homicide. He who unintentionally kills another man at the games or in military exercises duly authorized by the magistrates, whether death follow immediately or after an interval, shall be acquitted, subject only to the purification required by the Delphian Oracle. Any physician whose patient dies against his will shall in like manner be acquitted. Any one who unintentionally kills the slave of another, believing that he is his own, with or without weapons, shall bear the master of the slave harmless, or pay a penalty amounting to twice the value of the slave, and to this let him add a purification greater than in the case of homicide at the games. If a man kill his own slave, a purification only is required of him. If he kill a freeman unintentionally, let him also make purification; and let him remember the ancient tradition which says that the murdered man is indignant when he sees the murderer walk about in his own accustomed haunts, and that he terrifies him with the remembrance of his crime. And therefore the homicide should keep away from his native land for a year, or, if he have slain a stranger, let him avoid the land of the stranger for a like period. If he complies with this condition, the nearest kinsman of the deceased shall take pity upon him and be reconciled to him; but if he refuses to remain in exile, or visits the temples unpurified, then let the kinsman proceed against him, and demand a double penalty. The kinsman who neglects this duty shall himself incur the curse, and any one who likes may proceed against him, and compel him to leave his country for five years. If a stranger involuntarily kill a stranger, any one may proceed against him in the same manner: and the homicide, if he be a metic, shall be banished for a year; but if he be an entire stranger, whether he have murdered metic, citizen, or stranger, he shall be banished for ever; and if he return, he shall be punished with death, and his property shall go to the next of kin of the murdered man. If he come back by sea against his will, he shall remain on the seashore, wetting his feet in the water while he waits for a vessel to sail; or if he be brought back by land, the magistrates shall send him unharmed beyond the border. Next follows murder done from anger, which is of two kinds--either arising out of a sudden impulse, and attended with remorse; or committed with premeditation, and unattended with remorse. The cause of both is anger, and both are intermediate between voluntary and involuntary. The one which is committed from sudden impulse, though not wholly involuntary, bears the image of the involuntary, and is therefore the more excusable of the two, and should receive a gentler punishment. The act of him who nurses his wrath is more voluntary, and therefore more culpable. The degree of culpability depends on the presence or absence of intention, to which the degree of punishment should correspond. For the first kind of murder, that which is done on a momentary impulse, let two years' exile be the penalty; for the second, that which is accompanied with malice prepense, three. When the time of any one's exile has expired, the guardians shall send twelve judges to the borders of the land, who shall have authority to decide whether he may return or not. He who after returning repeats the offence, shall be exiled and return no more, and, if he return, shall be put to death, like the stranger in a similar case. He who in a fit of anger kills his own slave, shall purify himself; and he who kills another man's slave, shall pay to his master double the value. Any one may proceed against the offender if he appear in public places, not having been purified; and may bring to trial both the next of kin to the dead man and the homicide, and compel the one to exact, and the other to pay, a double penalty. If a slave kill his master, or a freeman who is not his master, in anger, the kinsmen of the murdered person may do with the murderer whatever they please, but they must not spare his life. If a father or mother kill their son or daughter in anger, let the slayer remain in exile for three years; and on the return of the exile let the parents separate, and no longer continue to cohabit, or have the same sacred rites with those whom he or she has deprived of a brother or sister. The same penalty is decreed against the husband who murders his wife, and also against the wife who murders her husband. Let them be absent three years, and on their return never again share in the same sacred rites with their children, or sit at the same table with them. Nor is a brother or sister who have lifted up their hands against a brother or sister, ever to come under the same roof or share in the same rites with those whom they have robbed of a child. If a son feels such hatred against his father or mother as to take the life of either of them, then, if the parent before death forgive him, he shall only suffer the penalty due to involuntary homicide; but if he be unforgiven, there are many laws against which he has offended; he is guilty of outrage, impiety, sacrilege all in one, and deserves to be put to death many times over. For if the law will not allow a man to kill the authors of his being even in self-defence, what other penalty than death can be inflicted upon him who in a fit of passion wilfully slays his father or mother? If a brother kill a brother in self-defence during a civil broil, or a citizen a citizen, or a slave a slave, or a stranger a stranger, let them be free from blame, as he is who slays an enemy in battle. But if a slave kill a freeman, let him be as a parricide. In all cases, however, the forgiveness of the injured party shall acquit the agents; and then they shall only be purified, and remain in exile for a year. Enough of actions that are involuntary, or done in anger; let us proceed to voluntary and premeditated actions. The great source of voluntary crime is the desire of money, which is begotten by evil education; and this arises out of the false praise of riches, common both among Hellenes and barbarians; they think that to be the first of goods which is really the third. For the body is not for the sake of wealth, but wealth for the body, as the body is for the soul. If this were better understood, the crime of murder, of which avarice is the chief cause, would soon cease among men. Next to avarice, ambition is a source of crime, troublesome to the ambitious man himself, as well as to the chief men of the state. And next to ambition, base fear is a motive, which has led many an one to commit murder in order that he may get rid of the witnesses of his crimes. Let this be said as a prelude to all enactments about crimes of violence; and the tradition must not be forgotten, which tells that the murderer is punished in the world below, and that when he returns to this world he meets the fate which he has dealt out to others. If a man is deterred by the prelude and the fear of future punishment, he will have no need of the law; but in case he disobey, let the law be declared against him as follows:--He who of malice prepense kills one of his kindred, shall in the first place be outlawed; neither temple, harbour, nor agora shall be polluted by his presence. And if a kinsman of the deceased refuse to proceed against his slayer, he shall take the curse of pollution upon himself, and also be liable to be prosecuted by any one who will avenge the dead. The prosecutor, however, must observe the customary ceremonial before he proceeds against the offender. The details of these observances will be best determined by a conclave of prophets and interpreters and guardians of the law, and the judges of the cause itself shall be the same as in cases of sacrilege. He who is convicted shall be punished with death, and not be buried within the country of the murdered person. He who flies from the law shall undergo perpetual banishment; if he return, he may be put to death with impunity by any relative of the murdered man or by any other citizen, or bound and delivered to the magistrates. He who accuses a man of murder shall demand satisfactory bail of the accused, and if this is not forthcoming, the magistrate shall keep him in prison against the day of trial. If a man commit murder by the hand of another, he shall be tried in the same way as in the cases previously supposed, but if the offender be a citizen, his body after execution shall be buried within the land. If a slave kill a freeman, either with his own hand or by contrivance, let him be led either to the grave or to a place whence he can see the grave of the murdered man, and there receive as many stripes at the hand of the public executioner as the person who took him pleases; and if he survive he shall be put to death. If a slave be put out of the way to prevent his informing of some crime, his death shall be punished like that of a citizen. If there are any of those horrible murders of kindred which sometimes occur even in well-regulated societies, and of which the legislator, however unwilling, cannot avoid taking cognizance, he will repeat the old myth of the divine vengeance against the perpetrators of such atrocities. The myth will say that the murderer must suffer what he has done: if he have slain his father, he must be slain by his children; if his mother, he must become a woman and perish at the hands of his offspring in another age of the world. Such a preamble may terrify him; but if, notwithstanding, in some evil hour he murders father or mother or brethren or children, the mode of proceeding shall be as follows:--Him who is convicted, the officers of the judges shall lead to a spot without the city where three ways meet, and there slay him and expose his body naked; and each of the magistrates shall cast a stone upon his head and justify the city, and he shall be thrown unburied beyond the border. But what shall we say of him who takes the life which is dearest to him, that is to say, his own; and this not from any disgrace or calamity, but from cowardice and indolence? The manner of his burial and the purification of his crime is a matter for God and the interpreters to decide and for his kinsmen to execute. Let him, at any rate, be buried alone in some uncultivated and nameless spot, and be without name or monument. If a beast kill a man, not in a public contest, let it be prosecuted for murder, and after condemnation slain and cast without the border. Also inanimate things which have caused death, except in the case of lightning and other visitations from heaven, shall be carried without the border. If the body of a dead man be found, and the murderer remain unknown, the trial shall take place all the same, and the unknown murderer shall be warned not to set foot in the temples or come within the borders of the land; if discovered, he shall die, and his body shall be cast out. A man is justified in taking the life of a burglar, of a footpad, of a violator of women or youth; and he may take the life of another with impunity in defence of father, mother, brother, wife, or other relations. The nurture and education which are necessary to the existence of men have been considered, and the punishment of acts of violence which destroy life. There remain maiming, wounding, and the like, which admit of a similar division into voluntary and involuntary. About this class of actions the preamble shall be: Whereas men would be like wild beasts unless they obeyed the laws, the first duty of citizens is the care of the public interests, which unite and preserve states, as private interests distract them. A man may know what is for the public good, but if he have absolute power, human nature will impel him to seek pleasure instead of virtue, and so darkness will come over his soul and over the state. If he had mind, he would have no need of law; for mind is the perfection of law. But such a freeman, 'whom the truth makes free,' is hardly to be found; and therefore law and order are necessary, which are the second-best, and they regulate things as they exist in part only, but cannot take in the whole. For actions have innumerable characteristics, which must be partly determined by the law and partly left to the judge. The judge must determine the fact; and to him also the punishment must sometimes be left. What shall the law prescribe, and what shall be left to the judge? A city is unfortunate in which the tribunals are either secret and speechless, or, what is worse, noisy and public, when the people, as if they were in a theatre, clap and hoot the various speakers. Such courts a legislator would rather not have; but if he is compelled to have them, he will speak distinctly, and leave as little as possible to their discretion. But where the courts are good, and presided over by well-trained judges, the penalties to be inflicted may be in a great measure left to them; and as there are to be good courts among our colonists, we need not determine beforehand the exact proportion of the penalty and the crime. Returning, then, to our legislator, let us indite a law about wounding, which shall run as follows:--He who wounds with intent to kill, and fails in his object, shall be tried as if he had succeeded. But since God has favoured both him and his victim, instead of being put to death, he shall be allowed to go into exile and take his property with him, the damage due to the sufferer having been previously estimated by the court, which shall be the same as would have tried the case if death had ensued. If a child should intentionally wound a parent, or a servant his master, or brother or sister wound brother or sister with malice prepense, the penalty shall be death. If a husband or wife wound one another with intent to kill, the penalty which is inflicted upon them shall be perpetual exile; and if they have young children, the guardians shall take care of them and administer their property as if they were orphans. If they have no children, their kinsmen male and female shall meet, and after a consultation with the priests and guardians of the law, shall appoint an heir of the house; for the house and family belong to the state, being a 5040th portion of the whole. And the state is bound to preserve her families happy and holy; therefore, when the heir of a house has committed a capital offence, or is in exile for life, the house is to be purified, and then the kinsmen of the house and the guardians of the law are to find out a family which has a good name and in which there are many sons, and introduce one of them to be the heir and priest of the house. He shall assume the fathers and ancestors of the family, while the first son dies in dishonour and his name is blotted out. Some actions are intermediate between the voluntary and involuntary. Those done from anger are of this class. If a man wound another in anger, let him pay double the damage, if the injury is curable; or fourfold, if curable, and at the same time dishonourable; and fourfold, if incurable; the amount is to be assessed by the judges. If the wounded person is rendered incapable of military service, the injurer, besides the other penalties, shall serve in his stead, or be liable to a suit for refusing to serve. If brother wounds brother, then their parents and kindred, of both sexes, shall meet and judge the crime. The damages shall be assessed by the parents; and if the amount fixed by them is disputed, an appeal shall be made to the male kindred; or in the last resort to the guardians of the law. Parents who wound their children are to be tried by judges of at least sixty years of age, who have children of their own; and they are to determine whether death, or some lesser punishment, is to be inflicted upon them--no relatives are to take part in the trial. If a slave in anger smite a freeman, he is to be delivered up by his master to the injured person. If the master suspect collusion between the slave and the injured person, he may bring the matter to trial: and if he fail he shall pay three times the injury; or if he obtain a conviction, the contriver of the conspiracy shall be liable to an action for kidnapping. He who wounds another unintentionally shall only pay for the actual harm done. In all outrages and acts of violence, the elder is to be more regarded than the younger. An injury done by a younger man to an elder is abominable and hateful; but the younger man who is struck by an elder is to bear with him patiently, considering that he who is twenty years older is loco parentis, and remembering the reverence which is due to the Gods who preside over birth. Let him keep his hands, too, from the stranger; instead of taking upon himself to chastise him when he is insolent, he shall bring him before the wardens of the city, who shall examine into the case, and if they find him guilty, shall scourge him with as many blows as he has given; or if he be innocent, they shall warn and threaten his accuser. When an equal strikes an equal, whether an old man an old man, or a young man a young man, let them use only their fists and have no weapons. He who being above forty years of age commences a fight, or retaliates, shall be counted mean and base. To this preamble, let the law be added: If a man smite another who is his elder by twenty years or more, let the bystander, in case he be older than the combatants, part them; or if he be younger than the person struck, or of the same age with him, let him defend him as he would a father or brother; and let the striker be brought to trial, and if convicted imprisoned for a year or more at the discretion of the judges. If a stranger smite one who is his elder by twenty years or more, he shall be imprisoned for two years, and a metic, in like case, shall suffer three years' imprisonment. He who is standing by and gives no assistance, shall be punished according to his class in one of four penalties--a mina, fifty, thirty, twenty drachmas. The generals and other superior officers of the army shall form the court which tries this class of offences. Laws are made to instruct the good, and in the hope that there may be no need of them; also to control the bad, whose hardness of heart will not be hindered from crime. The uttermost penalty will fall upon those who lay violent hands upon a parent, having no fear of the Gods above, or of the punishments which will pursue them in the world below. They are too wise in their own conceits to believe in such things: wherefore the tortures which await them in another life must be anticipated in this. Let the law be as follows:-- If a man, being in his right mind, dare to smite his father and mother, or his grandfather and grandmother, let the passer-by come to the rescue; and if he be a metic or stranger who comes to the rescue, he shall have the first place at the games; or if he do not come to the rescue, he shall be a perpetual exile. Let the citizen in the like case be praised or blamed, and the slave receive freedom or a hundred stripes. The wardens of the agora, the city, or the country, as the case may be, shall see to the execution of the law. And he who is an inhabitant of the same place and is present shall come to the rescue, or he shall fall under a curse. If a man be convicted of assaulting his parents, let him be banished for ever from the city into the country, and let him abstain from all sacred rites; and if he do not abstain, let him be punished by the wardens of the country; and if he return to the city, let him be put to death. If any freeman consort with him, let him be purified before he returns to the city. If a slave strike a freeman, whether citizen or stranger, let the bystander be obliged to seize and deliver him into the hands of the injured person, who may inflict upon him as many blows as he pleases, and shall then return him to his master. The law will be as follows:--The slave who strikes a freeman shall be bound by his master, and not set at liberty without the consent of the person whom he has injured. All these laws apply to women as well as to men. _ |
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