366 HISTORY OF GREECE. minor penalty actually proposed by the defenders of Mi It lade's themselves, as a substitute for the punishment of death. In those penal cases at Athens, where the punishment was not fixed beforehand by the terms of the law, if the person accused was found guilty, it was customary to submit to the jurors, subse- quently and separately, the question as to amount of punishment : first, the accuser named the penalty which he thought suitable ; next, the accused person was called upon to name an amount of penalty for himself, and the jurors were constrained to take their choice between these two, no third gradation of penalty being admissible for consideration. 1 Of course, under such circum- 1 That this was the habitual course of Attic procedure in respect to pub- lic indictments, wherever a positive amount of penalty was not previously determined, appears certain. See Plainer, Prozess und Klagen bei den Attikern, Abschn. vi, vol. i, p. 201 ; Heffter, Die Athenaische Gerichtsver- fassung, p. 334. Meier and Schumann (Der Attische Prozess, b. iv, p. 725) maintain that any one of the dikasts might propose a third measure of pen- alty, 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 dis- cussion 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 irpoaTCfirjfia ; that is, after the dikasts had pronounced the full penalty de- manded 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 ot ths dikasts were given, by depositing pebbles in two casks, under certain arrangements of detail. The uyuv rt/Kj/rdf, 6'iKjj n/^nrbf, or trial including this separate admeas- urement of penalty, as distinguished from the ^'LKTJ uTifiijTof, or trial where the penalty was predetermined, and where was no Ti^non, or vote ol 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-penal.it/ (avrm/idtrtfat or vKorinu.'-da.i) 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 per- ions found it convenient to name very large penalties on themselves, n
