Note 713 — Chapter VI · LAWS AND DISCIPLINE OF LYKURGUS AT SPARTA. (continued 2)

Herod. vi. 57, in enumerating the privileges and perquisites of the kings—δικάζειν δὲ μούνους τοὺς βασιλῆας τόσαδε μοῦνα· πατρούχου τε παρθένου πέρι, ἐς τὸν ἱκνέεται ἔχειν, ἢν μή περ ὁ πατὴρ αὐτὴν ἐγγυήσῃ· καὶ ὁδῶν δημοσιέων πέρι· καὶ ἤν τις θετὸν παῖδα ποιέεσθαι ἐθέλῃ, βασιλήων ἐνάντιον ποιέεσθαι.

It seems curious that πατρούχος πάρθενος should mean a damsel who has no father (literally, lucus a non lucendo): but I suppose that we must accept this upon the authority of Julius Pollux and Timæus. Proceeding on this interpretation, Valckenaer gives the meaning of the passage very justly: “Orbæ nuptias, necdum a patre desponsatæ, si plures sibi vindicarent, fieretque ἡ ἐπίκληρος, ut Athenis loquebantur, ἐπίδικος, Spartæ lis ista dirimebatur a regibus solis.”

Now the judicial function here described, is something very different from the language of Dr. Thirlwall, that “the kings had the disposal of the hand of orphan heiresses in cases where the father had not signified his will.” Such disposal would approach somewhat to that omnipotence which Aristophanês (Vesp. 585) makes old Philokleon claim for the Athenian dikasts (an exaggeration well calculated to serve the poet’s purpose of making the dikasts appear monsters of caprice and injustice), and would be analogous to the power which English kings enjoyed three centuries ago as feudal guardians over wards. But the language of Herodotus is inconsistent with the idea that the kings chose a husband for the orphan heiress. She was claimed, as of right, by persons in certain degrees of relationship to her. Whether the law about ἀγχίστεια, affinity carrying legal rights, was the same as at Athens, we cannot tell; but the question submitted for adjudication at Sparta, to the kings, and at Athens to the dikasteries, was certainly the same, agreeably to the above note of Valckenaer,—namely, to whom, among the various claimants for the marriage, the best legal title really belonged. It is, indeed, probable enough, that the two royal descendants of Hêraklês might abuse their judicial function, as there are various instances known in which they take bribes; but they were not likely to abuse it in favor of an unprovided youth.

Next, as to adoption: Herodotus tells us that the ceremony of adoption was performed before the kings: probably enough, there was some fee paid with it. But this affords no ground for presuming that they had any hand in determining whom the childless father was to adopt. According to the Attic law about adoption, there were conditions to be fulfilled, consents to be obtained, the absence of disqualifying circumstances verified, etc; and some authority before which this was to be done was indispensable (see Meier und Schömann, Attisch. Prozess, b. iii. ch. ii. p. 436). At Sparta, such authority was vested by ancient custom in the king: but we are not told, nor is it probable, “that he could interpose, in opposition to the wishes of individuals, to relieve poverty,” as Dr. Thirlwall supposes.