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.
[678] Cornelius Nepos, Miltiadês, c. 7; and Kimon, c. 1; Plutarch, Kimon, c. 4; Diodorus, Fragment. lib. x. All these authors probably drew from the same original fountain; perhaps Ephorus (see Marx, ad Ephori Fragmenta, p. 212); but we have no means of determining. Respecting the alleged imprisonment of Kimon, however, they must have copied from different authorities, for their statements are all different. Diodorus states, that Kimon put himself voluntarily into prison after his father had died there, because he was not permitted on any other condition to obtain the body of his deceased father for burial. Cornelius Nepos affirms that he was imprisoned, as being legally liable to the state for the unpaid fine of his father. Lastly, Plutarch does not represent him as having been put into prison at all. Many of the Latin writers follow the statement of Diodorus: see the citations in Bos’s note on the above passage of Cornelius Nepos.
There can be no hesitation in adopting the account of Plutarch as the true one. Kimon neither was, nor could be, in prison, by the Attic law, for an unpaid fine of his father; but after his father’s death, he became liable for the fine, in this sense,—that he remained disfranchised (ἄτιμος) and excluded from his rights as a citizen, until the fine was paid: see Dêmosthen. cont. Timokrat. c. 46, p. 762, R.
[679] See Boeckh, Public Economy of Athens, b. iii, ch. 13, p. 390, Engl. Transl. (vol. i, p. 420, Germ.); Meier und Schömann, Attisch. Prozess, p. 744. Dr. Thirlwall takes a different view of this point, with which I cannot concur (Hist. Gr. vol. iii, Append. ii, p. 488); though his general remarks on the trial of Miltiadês are just and appropriate (ch. xiv, p. 273).
Cornelius Nepos (Miltiadês, c. 8; Kimon, c. 3) says that the misconduct connected with Paros was only a pretence with the Athenians for punishing Miltiadês; their real motive, he affirms, was envy and fear, the same feelings which dictated the ostracism of Kimon. How little there is to justify this fancy, may be seen even from the nature of the punishment inflicted. Fear would have prompted them to send away or put to death Miltiadês, not to fine him. The ostracism, which was dictated by fear, was a temporary banishment.
[680] The interval between his trial and his decease is expressed in Herodotus (vi, 136) by the difference between the present participle σηπομένου and the past participle σαπέντος τοῦ μηροῦ.
[681] Machiavel, Discorsi sopra Tito Livio, cap. 58. “L’ opinione contro ai popoli nasce, perchè dei popoli ciascun dice male senza paura, e liberamente ancora mentre che regnano: dei principi si parla sempre con mille timori e mille rispetti.”
[682] Machiavel will not even admit so much as this, in the clear and forcible statement which he gives of the question here alluded to: he contends that the man who has rendered services ought to be recompensed for them, but that he ought to be punished for subsequent crime just as if the previous services had not been rendered. He lays down this position in discussing the conduct of the Romans towards the victorious survivor of the three Horatii, after the battle with the Curiatii: “Erano stati i meriti di Orazio grandissimi, avendo con la sua virtù vinti i Curiazi. Era stato il fallo suo atroce, avendo morto la sorella. Nondimeno dispiacque tanto tale omicidio ai Romani, che lo condussero a disputare della vita, non ostante che gli meriti suoi fussero tanto grandi e si freschi. La qual cosa, a chi superficialmente la considerasse, parrebbe uno esempio d’ ingratitudine popolare. Nondimeno chi lo esaminerà meglio, e con migliore considerazione ricercherà quali debbono essere gli’ ordini delle republiche, biasimearà quel popolo piuttosto per averlo assoluto, che per averlo voluto condannare: e la ragione è questa, che nessuna republica bene ordinata, non mai cancellò i demeriti con gli meriti dei suoi cittadini: ma avendo ordinati i premi ad una buona opera, e le pene ad una cattiva, ed avendo premiato uno per aver bene operato, se quel medesimo opera dipoi male, lo gastiga senza avere riguardo alcuno alle sue buone opere. E quando questi ordini sono bene osservati, una città vive libera molto tempo: altrimenti sempre rovinera presto. Perchè se, ad un cittadino che abbia fatto qualche egregia opere per la città, si aggiunge oltre alla riputazione, che quella cosa gli arreca, una audacia e confidenza di potere senza temer pena, far qualche opera non buona, diventerà in breve tempo tanto insolente, che si risolverà ogni civiltà.”—Machiavel, Discorsi sop. Tit. Livio, ch. 24.
[683] Machiavel, in the twenty-ninth chapter of his Discorsi sopra T. Livio, examines the question, “Which of the two is more open to the charge of being ungrateful,—a popular government, or a king?” He thinks that the latter is more open to it. Compare chapter fifty-nine of the same work, where he again supports a similar opinion.