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in the laws in Demosth. c. Timocr. 733, it is declared, that if a fine be imposed, the party shall be imprisoned until it is paid,
In civil causes the sentence by which the Court awarded redress to the injured party would vary according to the nature of his complaint. Where he sought to recover an estate in land, or a house, or any specific thing, as a ring, a horse, a slave, nothing further was required, than to determine to whom the estate, the house, or the thing demanded, of right belonged. [heres (greek) ; oikias dike.] The same would be the case in an action of debt, xpeovs 5u«7, where a sum certain was demanded ; as for instance, where the plaintiff had lent a sum of money to the defendant, and at the trial no question was made as to the amount, but the dispute was, whether it was a loan or a gift, or whether it had been paid or not. So, in an action for breach of contract, if by the terms of the contract a certain penalty had been attached to its violation, it would be unnecessary to have an inquiry of damages, they being already liquidated by the act of the parties themselves. (Demosth. c. Dionys. 1291, 1296, et argum.) In these and many other similar cases the trial was ari^rjros. On the other hand, wherever the damages were in their nature unliquidated, and no provision had been made concerning them either by the law or by the agreement of the parties, they were to be assessed by the dicasts.
The following was the course of proceeding in the Tifj.T]To\ ayuves.
Let us suppose that on a criminal prosecution the defendant had been found guilty. The superintending magistrate then called upon the prosecutor to say, what punishment he proposed to be inflicted on him, and what he had to say thereupon. The bill of indictment (^y/fA^/xa) was always" superscribed with some penalty by the. person who preferred it. He was said eiriypd-a, and the penalty proposed is called (Demosth. c. Nausim. 985.) We find also the expressions orcryetj/ Ti/r^/im, rif^aardui to) cpevyovTi, Ti^ffiv iroieiffQai. When a charge was brought not by a private individual, but by a magistrate ex officio, the law required him in like manner to write down the penalty which he thought the case merited. (Demosth. c. Macart. 1076.) The prosecutor was now called upon to support the allegation in the indictment, and for that purpose to mount the platform and address the dicasts (aj/a8aiveu> ds Ti/«ftua).
Here he said whatever occurred to him as likely to aggravate the charge, or increase the dicasts against his opponents. He was not bound, however, to abide by the proposal made in the bill, but might, if he pleased (with the consent of the court) ask for a lower penalty than he had demanded before. This was often done at the request of the defendant himself, or of his friends ; sometimes from motives of humanity ; and sometimes from prudential considerations. If the accused submitted to the punishment proposed on the other side, there was no further dispute ; if he thought it too severe, he made a counter proposition, naming the penalty (commonly some pecuniary fine) which he considered would satisfy the demands of justice. He was then said avnri/j.aa-Qai, or eavry Tijuwo-Qai. (Demosth. c. Timocr. 743, c. Nicostr. 1252 ; Aesch. de Fals. Leg. 29, ed. Steph.) Pie was allowed to address the court in mitigation of
punishment; to say what he could in extenuation* of his offence, or to appeal to the mercy of his judges. This was frequently done for him by his relations and friends ; and it was not unusual for a man, who thought himself in peril of life or free dom, to produce his wife and children in court, to excite compassion. (Demosth. c.Mid. 573, 575, c. Aristocr. 793, de Fals. Leg. 431, 434, c. Onetor. 878, c. Aphob. 834 ; Aristoph. Vesp. 560.) After both parties had been heard, the dicasts were called upon to give their verdict. ;
Here occurs a question, about which there has been much difference of opinion, and which it is impossible to determine with any certainty ; viz. whether the dicasts, in giving this verdict, were confined to a choice between the estimates of the opposing parties, or whether they had a discretion to award what punishment they pleased. Without entering upon any controversial discussion, the following appears to the writer the most probable view of the matter.
The dicasts had no power of discussing among themselves, or agreeing upon the fine or penalty to be awarded. Such power was incompatible with their mode of voting by ballot. [PsEPHUS.] At the same time it would be absurd to suppose that the Athenian court had no means of controlling the parties in the exercise of that privilege which the law gave them, or that it was the common practice for the parties to submit widely different estimates to the dicasts, and leave them no alternative but the extreme of severity on the one side, and the extreme of mercy on the other. Many passages in the orators are opposed to such a view, and especially the words of Demosthenes, c. Timocr. 737.
The course of proceeding seems to have been as follows. The prosecutor usually superscribed his indictment with the highest penalty which the law or the nature of the case would admit of. In the course of the trial there might be A'arious indications on the part of the dicasts of a disposition to favour one side or the other. They often exhibited their feelings by vehement gestures, clamour, interruption, and questioning of the parties. It was not unusual for the speakers to make allusions to the punishment before the first verdict had been given. (Aesch. c. Timarck. 12, de Fals. Leg. 48. ed. Steph. ; Demosth. c. Mid. 523, c. Boeot. de dot. 1022, 1024, c. Spud. 1033, c. Macart. 1060, c. Steph. 1128 ; Platner, Proc. mid Klag. vol. i. p. 384.) All this enabled both parties to feel the pulse of the court before the time had arrived for the second verdict. If the prosecutor saw that the dicasts were greatly incensed against his opponent, and he himself was not mercifully inclined,,, he would persist in asking for the highest penalty. If he was himself disposed to be merciful, or thought that the dicasts were, he would relax in his demand. Similar views would prevent the defendant from asking for too small a penalty, or would induce him to effect a compromise (if possible) with his opponent. We may reasonably suppose, that it was competent for the prosecutor to mitigate his demand at any time before the magistrate called on the dicasts to divide ; but not after, without the consent of the court. (Demosth. c. Nicostrat. 1252, 1254, c. Tkeocrin. 1343, c. Neaer. 1347.) If the parties were endeavouring to come to an arrangement, the court would give them a reasonable time for that purpose ; and there