Note 677 — Chapter XXXVI · FROM THE IONIC REVOLT TO THE BATTLE OF MARATHON.

That this was the habitual course of Attic procedure in respect to public indictments, wherever a positive amount of penalty was not previously determined, appears certain. See Platner, Prozess und Klagen bei den Attikern, Abschn. vi, vol. i, p. 201; Heffter, Die Athenäische Gerichtsverfassung, p. 334. Meier and Schömann (Der Attische Prozess, b. iv, p. 725) maintain that any one of the dikasts might propose a third measure of penalty, distinct from that proposed by the accuser as well as the accused. In respect to public indictments, this opinion appears decidedly incorrect; but where the sentence to be pronounced involved a compensation for private wrong and an estimate of damages, we cannot so clearly determine whether there was not sometimes a greater latitude in originating propositions for the dikasts to vote upon. It is to be recollected that these dikasts were several hundred, sometimes even more, in number,—that there was no discussion or deliberation among them,—and that it was absolutely necessary for some distinct proposition to be laid before them to take a vote upon. In regard to some offences, the law expressly permitted what was called a προστíμημα; that is, after the dikasts had pronounced the full penalty demanded by the accuser, any other citizen who thought the penalty so imposed insufficient, might call for a certain limited amount of additional penalty, and require the dikasts to vote upon it,—ay or no. The votes of the dikasts were given, by depositing pebbles in two casks, under certain arrangements of detail.

The ἀγὼν τιμητὸς, δίκη τιμητὸς, or trial including this separate admeasurement of penalty,—as distinguished from the δίκη ἀτίμητος, or trial where the penalty was predetermined, and where was no τίμησις, or vote of admeasurement of penalty,—is an important line of distinction in the subject-matter of Attic procedure; and the practice of calling on the accused party, after having been pronounced guilty, to impose upon himself a counter-penalty or under-penalty (ἀντιτιμᾶσθαι or ὑποτιμᾶθαι) in contrast with that named by the accuser, was a convenient expedient for bringing the question to a substantive vote of the dikasts. Sometimes accused persons found it convenient to name very large penalties on themselves, in order to escape a capital sentence invoked by the accuser (see Dêmosthen. cont. Timokrat. c. 34, p. 743, R). Nor was there any fear, as Platner imagines, that in the generality of cases the dikasts would be left under the necessity of choosing between an extravagant penalty and something merely nominal; for the interest of the accused party himself would prevent this from happening. Sometimes we see him endeavoring by entreaties to prevail upon the accuser voluntarily to abate something of the penalty which he had at first named; and the accuser might probably do this, if he saw that the dikasts were not likely to go along with that first proposition.

In one particular case, of immortal memory, that which Platner contemplates actually did happen; and the death of Sokratês was the effect of it. Sokratês, having been found guilty, only by a small majority of votes among the dikasts, was called upon to name a penalty upon himself, in opposition to that of death, urged by Melêtus. He was in vain entreated by his friends to name a fine of some tolerable amount, which they would at once have paid in his behalf; but he would hardly be prevailed upon to name any penalty at all, affirming that he had deserved honor rather than punishment: at last, he named a fine so small in amount, as to be really tantamount to an acquittal. Indeed, Xenophon states that he would not name any counter-penalty at all; and in the speech ascribed to him, he contended that he had even merited the signal honor of a public maintenance in the prytaneium (Plato, Apol. Sok. c. 27; Xenoph. Apol. Sok. 23; Diogen. Laërt. ii, 41). Plato and Xenophon do not agree; but taking the two together, it would seem that he must have named a very small fine. There can be little doubt that this circumstance, together with the tenor of his defence, caused the dikasts to vote for the proposition of Melêtus.