The greater part of the dealings between man and man have been now regulated by us with the exception of those that relate to orphans and the supervision of orphans by their guardians. These follow next in order, and must be regulated in some way. But to arrive at them we must begin with the testamentary wishes of the dying and the case of those who may have happened to die intestate. When I said, Cleinias, that we must regulate them, I had in my mind the difficulty and perplexity in which all such matters are involved. You cannot leave them unregulated, for individuals would make regulations at variance with one another, and repugnant to the laws and habits of the living and to their own previous habits, if a person were simply allowed to make any will which he pleased, and this were to take effect in whatever state he may have been at the end of his life ; for most of us lose our senses in a manner, and feel crushed when we think that we are about to die.
Cle. What do you mean, Stranger ?
Ath. O Cleinias, a man when he is about to die is an intractable creature, and is apt to use language which causes a great deal of anxiety and trouble to the legislator.
Cle. In what way ?
Ath. He wants to have the entire control of all his property, and will use angry words.
Cle. Such as what ?
Ath. O ye Gods, he will say, how monstrous that I am not allowed to give, or not to give my own to whom I will — less to him who has been bad to me, and more to him who has been good to me, and whose badness and goodness have been tested by me in time of sickness or in old age and in every other sort of fortune !
Cle. Well Stranger, and may he not very fairly say so ?
Ath. In my opinion, Cleinias, the ancient legislators were too good-natured, and made laws without sufficient observation or consideration of human things.
Cle. What do you mean ?
Ath. I mean, my friend that they were afraid of the testator’s reproaches, and so they passed a law to the effect that a man should be allowed to dispose of his property in all respects as he liked ; but you and I, if I am not mistaken, will have something better to say to our departing citizens.
Cle. What ?
Ath. O my friends, we will say to them, hard is it for you, who are creatures of a day, to know what is yours — hard too, as the Delphic oracle says, to know yourselves at this hour. Now I, as the legislator, regard you and your possessions, not as belonging to yourselves, but as belonging to your whole family, both past and future, and yet more do regard both family and possessions as belonging to the state ; wherefore, if some one steals upon you with flattery, when you are tossed on the sea of disease or old age, and persuades you to dispose of your property in a way that is not for the best, I will not, if I can help, allow this ; but I will legislate with a view to the whole, considering what is best both for the state and for the family, esteeming as I ought the feelings of an individual at a lower rate ; and I hope that you will depart in peace and kindness towards us, as you are going the way of all mankind ; and we will impartially take care of all your concerns, not neglecting any of them, if we can possibly help. Let this be our prelude and consolation to the living and dying, Cleinias, and let the law be as follows :
He who makes a disposition in a testament, if he be the father of a family, shall first of all inscribe as his heir any one of his sons whom he may think fit ; and if he gives any of his children to be adopted by another citizen, let the adoption be inscribed. And if he has a son remaining over and above who has not been adopted upon any lot, and who may be expected to be sent out to a colony according to law, to him his father may give as much as he pleases of the rest of his property, with the exception of the paternal lot and the fixtures on the lot. And if there are other sons, let him distribute among them what there is more than the lot in such portions as he pleases. And if one of the sons has already a house of his own, he shall not give him of the money, nor shall he give money to a daughter who has been betrothed, but if she is not betrothed he may give her money. And if any of the sons or daughters shall be found to have another lot of land in the country, which has accrued after the testament has been made, they shall leave the lot which they have inherited to the heir of the man who has made the will. If the testator has no sons, but only daughters, let him choose the husband of any one of his daughters whom he pleases, and leave and inscribe him as his son and heir. And if a man have lost his son, when he was a child, and before he could be reckoned among grown-up men, whether his own or an adopted son, let the testator make mention of the circumstance and inscribe whom he will to be his second son in hope of better fortune. If the testator has no children at all, he may select and give to any one whom he pleases the tenth part of the property which he has acquired ; but let him not be blamed if he gives all the rest to his adopted son, and makes a friend of him according to the law. If the sons of a man require guardians, and : the father when he dies leaves a will appointing guardians, those have been named by him, whoever they are and whatever their number be, if they are able and willing to take charge of the children, shall be recognized according to the provisions of the will. But if he dies and has made no will, or a will in which he has appointed no guardians, then the next of kin, two on the father’s and two on the mother’s side, and one of the friends of the deceased, shall have the authority of guardians, whom the guardians of the law shall appoint when the orphans require guardians. And the fifteen eldest guardians of the law shall have the whole care and charge of the orphans, divided into threes according to seniority — a body of three for one year, and then another body of three for the next year, until the cycle of the five periods is complete ; and this, as far as possible, is to continue always. If a man dies, having made no will at all, and leaves sons who require the care of guardians, they shall share in the protection which is afforded by these laws.
And if a man dying by some unexpected fate leaves daughters behind him, let him pardon the legislator if he gives them in marriage, he have a regard only to two out of three conditions — nearness of kin and the preservation of the lot, and omits the third condition, which a father would naturally consider, for he would choose out of all the citizens a son for himself, and a husband for his daughter, with a view to his character and disposition — the father, say, shall forgive the legislator if he disregards this, which to him is an impossible consideration. Let the law about these matters where practicable be as follows : — If a man dies without making a will, and leaves behind him daughters, let his brother, being the son of the same father or of the same mother, having no lot, marry the daughter and have the lot of the dead man. And if he have no brother, but only a brother’s son, in like manner let them marry, if they be of a suitable age ; and if there be not even a brother’s son, but only the son of a sister, let them do likewise, and so in the fourth degree, if there be only the testator’s father’s brother, or in the fifth degree, his father’s brother’s son, or in the sixth degree, the child of his father’s sister. Let kindred be always reckoned in this way : if a person leaves daughters the relationship shall proceed upwards through brothers and sisters, and brothers’ and sisters’ children, and first the males shall come, and after them the females in the same family. The judge shall consider and determine the suitableness or unsuitableness of age in marriage ; he shall make an inspection of the males naked, and of the women naked down to the navel. And if there be a lack of kinsmen in a family extending to grandchildren of a brother, or to the grandchildren of a grandfather’s children, the maiden may choose with the consent of her guardians any one of the citizens who is willing and whom she wills, and he shall be the heir of the dead man, and the husband of his daughter. Circumstances vary, and there may sometimes be a still greater lack of relations within the limits of the state ; and if any maiden has no kindred living in the city, and there is some one who has been sent out to a colony, and she is disposed to make him the heir of her father’s possessions, if he be indeed of her kindred, let him proceed to take the lot according to the regulation of the law ; but if he be not of her kindred, she having no kinsmen within the city, and he be chosen by the daughter of the dead man, and empowered to marry by the guardians, let him return home and take the lot of him who died intestate. And if a man has no children, either male or female, and dies without making a will, let the previous law in general hold ; and let a man and a woman go forth from the family and share the deserted house, and let the lot belong absolutely to them ; and let the heiress in the first degree be a sister, and in a second degree a daughter of a brother, and in the third, a daughter of a sister, in the fourth degree the sister of a father, and in the fifth degree the daughter of a father’s brother, and in a sixth degree of a father’s sister ; and these shall dwell with their male kinsmen, according to the degree of relationship and right, as we enacted before. Now we must not conceal from ourselves that such laws are apt to be oppressive and that there may sometimes be a hardship in the lawgiver commanding the kinsman of the dead man to marry his relation ; be may be thought not to have considered the innumerable hindrances which may arise among men in the execution of such ordinances ; for there may be cases in which the parties refuse to obey, and are ready to do anything rather than marry, when there is some bodily or mental malady or defect among those who are bidden to marry or be married. Persons may fancy that the legislator never thought of this, but they are mistaken ; wherefore let us make a common prelude on behalf of the lawgiver and of his subjects, the law begging the latter to forgive the legislator, in that he, having to take care of the common weal, cannot order at the same time the various circumstances of individuals, and begging him to pardon them if naturally they are sometimes unable to fulfil the act which he in his ignorance imposes upon them.
Cle. And how, Stranger, can we act most fairly under the circumstances ?
Ath. There must be arbiters chosen to deal with such laws and the subjects of them.
Cle. What do you mean ?
Ath. I mean to say, that a case may occur in which the nephew, having a rich father, will be unwilling to marry the daughter of his uncle ; he will have a feeling of pride, and he will wish to look higher. And there are cases in which the legislator will be imposing upon him the greatest calamity, and he will be compelled to disobey the law, if he is required, for example, to take a wife who is mad, or has some other terrible malady of soul or body, such as makes life intolerable to the sufferer. Then let what we are saying concerning these cases be embodied in a law : — If any one finds fault with the established laws respecting testaments, both as to other matters and especially in what relates to marriage, and asserts that the legislator, if he were alive and present, would not compel him to obey — that is to say, would not compel those who are by our law required to marry or be given in marriage, to do either — and some kinsman or guardian dispute this, the reply is that the legislator left fifteen of the guardians of the law to be arbiters and fathers of orphans, male or female, and to them let the disputants have recourse, and by their aid determine any matters of the kind, admitting their decision to be final. But if any one thinks that too great power is thus given to the guardians of the law, let him bring his adversaries into the court of the select judges, and there have the points in dispute determined. And he who loses the cause shall have censure and blame from the legislator, which, by a man of sense, is felt to be a penalty far heavier than a great loss of money.
Thus will orphan children have a second birth. After their first birth we spoke of their nurture and education, and after their second birth, when they have lost their parents, we ought to take measures that the misfortune of orphanhood may be as little sad to them as possible. In the first place, we say that the guardians of the law are lawgivers and fathers to them, not inferior to their natural fathers. Moreover, they shall take charge of them year by year as of their own kindred ; and we have given both to them and to the children’s own guardians a suitable admonition concerning the nurture of orphans. And we seem to have spoken opportunely in our former discourse, when we said that the souls of the dead have the power after death of taking an interest in human affairs, about which there are many tales and traditions, long indeed, but true ; and seeing that they are so many and so ancient, we must believe them, and we must also believe the lawgivers, who tell us that these things are true, if they are not to be regarded as utter fools. But if these things are really so, in the first place men should have a fear of the Gods above, who regard the loneliness of the orphans ; and in the second place of the souls of the departed, who by nature incline to take an especial care of their own children, and are friendly to those who honour, and unfriendly to those who dishonour them. Men should also fear the souls of the living who are aged and high in honour ; wherever a city is well ordered and prosperous, their descendants cherish them, and so live happily ; old persons are quick to see and hear all that relates to them, and are propitious to those who are just in the fulfilment of such duties, and they punish those who wrong the orphan and the desolate, considering that they are the greatest and most sacred of trusts. To all which matters the guardian and magistrate ought to apply his mind, if he has any, and take heed of the nurture and education of the orphans, seeking in every possible way to do them good, for he is making a contribution to his own good and that of his children. He who obeys the tale which precedes the law, and does no wrong to an orphan, will never experience the wrath of the legislator. But he who is disobedient, and wrongs any one who is bereft of father or mother, shall pay twice the penalty which he would have paid if he had wronged one whose parents had been alive. As touching other legislation concerning guardians in their relation to orphans, or concerning magistrates and their superintendence of the guardians, if they did not possess examples of the manner in which children of freemen should be brought up in the bringing up of their own children, and of the care of their property in the care of their own, or if they had not just laws fairly stated about these very things — there would have been reason in making laws for them, under the idea that they were a peculiar-class, and we might distinguish and make separate rules for the life of those who are orphans and of those who are not orphans. But as the case stands, the condition of orphans with us not different from the case of those who have father, though in regard to honour and dishonour, and the attention given to them, the two are not usually placed upon a level. Wherefore, touching the legislation about orphans, the law speaks in serious accents, both of persuasion and threatening, and such a threat as the following will be by no means out of place : — He who is the guardian of an orphan of either sex, and he among the guardians of the law to whom the superintendence of this guardian has been assigned, shall love the unfortunate orphan as though he were his own child, and he shall be as careful and diligent in the management of his possessions as he would be if they were his own, or even more careful and dilligent. Let every one who has the care of an orphan observe this law. But any one who acts contrary to the law on these matters, if he be a guardian of the child, may be fined by a magistrate, or, if he be himself a magistrate, the guardian may bring him before the court of select judges, and punish him, if convicted, by exacting a fine of double the amount of that inflicted by the court. And if a guardian appears to the relations of the orphan, or to any other citizen, to act negligently or dishonestly, let them bring him before the same court, and whatever damages are given against him, let him pay fourfold, and let half belong to the orphan and half to him who procured the conviction. If any orphan arrives at years of discretion, and thinks that he has been ill-used by his guardians, let him within five years of the expiration of the guardianship be allowed to bring them to trial ; and if any of them be convicted, the court shall determine what he shall pay or suffer. And if magistrate shall appear to have wronged the orphan by neglect, and he be convicted, let the court determine what he shall suffer or pay to the orphan, and if there be dishonesty in addition to neglect, besides paying the fine, let him be deposed from his office of guardian of the law, and let the state appoint another guardian of the law for the city and for the country in his room.