“Katába! Katába!—Go down! Go Down!”
Lamachus hesitates. If he obeys, he loses all the rest of his defense. If he continues now, he enrages many of the dicasts, who will be absolutely sure to find against him. The presiding archon vainly rises, and tries to say something about “fair play.” Useless. The uproar continues. Like a flock of scared doves Lamachus and all his five children flee incontinently from the tribune, amid ironical cheers and laughter.
121. The First Verdict.—There is silence at length. “The dicasts will proceed to vote,” announces the court crier. The huge urns (one of bronze, one of wood) with narrow mouths are passed among the benches. Each juror has two round bronze disks, one solid, one with a hole bored in the middle. The solid acquit, the pierced ones convict. A juror drops the ballot he wishes to count into the bronze urn; the other goes into the wooden urn. The bronze urn is carried to the archon, and there is an uneasy hush while the 401 ballots are counted by the court officers. As expected, more than 300 dicasts vote that Ariston is entitled to damages against Lamachus as an embezzler.
122. The Second and Final Verdict.—Ariston is smiling; his friends are congratulating him, but the trial is by no means over. If Lamachus had been found guilty of something for which the law provided an absolute fixed penalty, this second part of the proceedings would be omitted. But here, although the jury has said some damage or penalty or penalties are due, it has still to fix the amount. Ariston has now to propose to the dicasts a sum which he thinks is adequate to avenge his wrongs and losses; Lamachus can propose a smaller sum and try to persuade the court that it is entirely proper. Each side must act warily. Athenian jurors are fickle folk. The very men who have just howled down Lamachus may, in a spasm of repentance, vote for absurdly low damages. Again, Lamachus must not propose anything obviously inadequate, otherwise the jurors who have just voted against him may feel insulted, and accept Ariston’s estimate.[*] Ariston therefore says that he deserves at least a talent. Lamachus rejoins that half a talent is more than ample, even conceding Arison’s alleged wrongs. The arguments this time are shorter and more to the point. Then comes the second balloting. A second time a majority (smaller this time, but enough) is in favor of Ariston. The better cause has conquered; and there is at least this advantage to the Athenian legal system, there will be no appeal nor tedious technicalities before a “higher court.” The verdict of the dicastery is final.
[*] Undoubtedly Socrates would have escaped with his life, if (after his original condemnation) he had proposed a real penalty to the jury, instead of an absurdly small fine. The only alternative for the dicasts was to accept the proposition of his opponents,—in his case, death.
123. The Merits and Defects of the Athenian Courts.—No doubt injustice is sometimes done. Sometimes it is the honest man who hears the dreaded “Kataba!” Sometimes the weeping children have their intended effect. Sometimes it is the arguments about “My opponent’s scoundrelly ancestry” which win the verdict. At the same time, your Athenian dicast is a remarkably shrewd and acute individual. He can distinguish between specious rhetoric and a real argument. He is probably honestly anxious to do justice. In the ordinary case where his personal interests or prejudices do not come into play, the decision is likely to match with justice quite as often perhaps as in the intricate court system of a great republic many centuries after the passing of Athens.
Certain features of some Athenian trials have not explained themselves in the example just witnessed. To prevent frivolous or blackmailing litigation it is provided that, if the plaintiff in a suit gets less than one fifth of the ballots in his favor (thus clearly showing he had no respectable case), he is liable to a heavy fine or, in default thereof, exile. Again, we have not waited for the actual closing scene—the dicasts each giving up his colored staff as a kind of voucher to the court officers, and in return getting his three obols (9 cents) daily jury fee, which each man claps promptly in his cheek, and then goes off home to try the case afresh at the family supper.
124. The Usual Punishments in Athens.—Trials involving murder or manslaughter come before the special court of Areopagus, and cannot well be discussed here, but most other criminal cases are tried before the dicasts in much the same way as a civil trial. When the law does not have a set penalty, the jury virtually has to sentence the defendant after convicting him, choosing between one of two proposed penalties. Greek courts can inflict death, exile, fines, but almost never imprisonment. There is no “penitentiary” or “workhouse” in Athens; and the only use for a jail is to confine accused persons whom it is impossible to release on bail before their trial. The Athens city jail (“The House,” as it is familiarly called—Oikēma) is a very simple affair, one open building, carelessly guarded and free to visitors all through the daylight. The inmates have to be kept in heavy fetters, otherwise they would be sure to take flight; and indeed escapes from custody are somewhat common.
125. The Heavy Penalty of Exile.—An Athenian will regard locking a criminal up for a term of years as a very foolish and expensive proceeding. If he has nothing wherewith to pay a round fine, why, simply send him into exile. This penalty is direful indeed to a Greek. The exile has often no protector, no standing in the courts of the foreign city, no government to avenge any outrage upon him. He can be insulted, starved, stripped, nay, murdered, often with impunity. Worse still, he is cut off from his friends with whom all his life is tied up; he is severed from the guardian gods of his childhood,—“the City,” the city of his birth, hopes, longings, exists no more for him. If he dies abroad, he is not sure of a decent funeral pyre; and meanwhile his children may be hungering at home. So long as the Athenians have this tremendous penalty of exile at their disposal, they do not feel the need of penitentiaries.
126. The Death Penalty at Athens.—There are also the stocks and whipping posts for meting out summary justice to irresponsible offenders. When the death penalty is imposed (and the matter often lies in the discretion of the dicasts), the criminal, if of servile or Barbarian blood, may be put to death in some hideous manner and his corpse tossed into the Barathron, a vile pit on the northwest side of Athens, there to be dishonored by the kites and crows. The execution of Athenian citizens, however, is extremely humane. The condemned is given a cup of poisonous hemlock juice and allowed to drink it while sitting comfortably among his friends in the prison. Little by little his body grows numb; presently he becomes senseless, and all is over without any pain.[*] The friends of the victim are then at liberty to give his body a suitable burial.