penalty imposed in a court of criminal justice at Athens, and also the
damages awarded in a civil action, received the name of τίμημα,
because they were estimated
according to the
injury which the public or the individual might respectively have sustained
(Harpocr. s. v. ἀτίμητος ἀγὼν καὶ
etc.; Dem. de Coron. trier.
The orators rarely use the word in this general sense). The penalty was
either fixed by the special finding of a court (τίμησιν ποιεῖσθαι,
Isocr. c. Leoch.
§ 6, of the dicasts; τίμησις,
[Dem.] c. Nicostr.
p. 1252.18; Aeschin. c.
§ 197 f.: or τιμημα,
Lys. c. Epicr.
§ 16; Dem. de F. L.
434.290), or merely declared by the court, having been fixed before: either
the law ordaining the penalty for certain crimes, or the people ordering by
a decree how the defendant on being found guilty should be punished, or in
civil suits, e. g. in an action for breach of contract, the parties having
attached a certain penalty to the violation of the contract. In the first
case the trial was called ἀγὼν τιμητός
ἐφ᾽ ᾧ τίμημα ὡρισμένον ἐκ τῶν ϝόμων οὐ
κεῖται ἀλλὰ τοὺς δικαστὰς ἔδει τιμᾶσθαι ὅ τι χρὴ παθεῖν ἢ
), in the second case ἀγὼν
(Harpocr. s.v. ᾧ
πρόσεστιν ἐκ τῶν νόμων ὡρισμένον τίμημα, ἑς μηδὲν δεῖν τοὺς
Cf. Schol. Dem. c. Mid.
p. 543), a distinction which applies to civil as well as to criminal trials.
Among the former class must be reckoned also those trials in which the court
had to choose between two penalties fixed by law, as e. g. in the γραφὴ δώρων.
Cf. Dinarch. c.
§ 60: οἱ ϝόμοι . . . περὶ
τῶν δωροδοκούντων δύο μόνον τιμήματα πεποιήκασιν, ἢ θάνατον . .
. ἢ δεκαπλοὐν τοῦ ἐξ ἀρχῆς λήμματος.
It is obvious that on a criminal charge two inquiries have to be made: first,
whether the defendant is guilty; secondly, if he be found guilty, what
punishment ought to be inflicted upon him. It may be advisable to leave the
punishment to the discretion of the dicasts, or it may not. In some cases
the Athenian lawgiver thought the dicasts ought to have no discretion. Thus,
in cases of murder and high treason sentence of death was imposed by the law
[PHONOS; PRODOSIA], and in many other cases
the punishment was likewise fixed by the law, the tendency being to limit in
this way the discretionary power of the dicasts (Strab. vi. p.260
see the trial of Cephisodotus in 359 B.C. in Dem.
p. 676.167, πέντε
ταλάντοις δ᾽ἐζημιώσατε, τρεῖς δὲ μόναι ψῆφοι διήνεγκαν τὸ μὴ
cf. c. Lept.
p. 481.79; and
the trial of Lycophron in Hyperid. pro Lyc.
col. 16, ἀγωνιζομένῳ δὲ και κινδυνεύοντι οὐ μόνον περὶ
θανάτου . . . ἀλλ᾽ ὑπὲρ τοῦ ἐξορισθῆναι καὶ ἀποθανόντα μηδὲ
ἐν τῇ πατρίδι ταφῆϝαι,
cf. pro Eux.
31, Aeschin. c. Ctes.
§ 252, Lye. c.
sub fin.] Such ἀγῶνες
were the γραφαὶ ἱεροσυλίας,
ψευδεγγραφῆς, βουλεύσεως, ἀδίκως εἰρχθῆϝαι ὡς μοιχόν, ξενίας,
δωροξενίας, μοιχείας, ἑταιρήσεως, προαγωγείας, ἀργίας, τραύματος
ἐκ προνοίας, ἀστρατείας,
etc. But where the exact nature
of the offence could not be foreseen by the lawgiver, or it might so far
vary in its character and circumstances as to admit of many degrees of
culpability, it might be desirable or even necessary to leave the punishment
to the discretion of the dicasts. The law then directed that the same court
which passed sentence on the culprit should impose the penalty which his
crime deserved; e. g. in a ψραφὴ ὕβρεως,
29, 16: ἐ[ὶ τῇ
ὕβρει . . . τίμησις τί χρὴ παθεῖν ἢ ἀποτῖσαι,
Aeschin. c. Tim.
§ 15. To this class belong the
γραφαὶ παρανόμων, παραπρεσβείας,
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 a specific thing, as a
ring, a horse, a slave (i. e. in all δίκαι πρός
), 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, χρέους
where a certain sum 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 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 (Dem. c. Dionys.
p. 1291.27; p.
1296.44, and Argum.
). In these and many other
similar cases the trial was ἀτιμητος,
of the δίκαι κατά τινος
and those ἀποστασίου
(Journ. of Philol.
vi. p. 25 f.).
On the other hand, wherever the damages were in their nature unliquidated,
and no provision had been made
concerning them either by the agreement of the parties or by the law (e. g.
in a δίκη ἀποστασίου, τοὺς ἁλόντας δεῖ δούλους
Harpocr. s. v.), they were to be assessed by the
dicasts, e. g. in the δίκαι
i. p. 834.67), αἰκίας
(Lys. c. Isocr. fr.
126 S.), ἐξαιρέσεως
([Dem.] c. Theocr.
1327.19; p. 1328.21), ψευδομαρτυριῶν
i. p. 1115.46; c. Aphob.
p. 849.16), βιαίων
(Lys. de caed.
§ 32, Solon's law, Plut. Sol. 23
, being superseded), etc.
The following was the course of proceeding in the τιμητοὶ ἀγῶνες.
The accuser proposed in the bill of
indictment some penalty. The indictment of Meletus ran: ἀδικεῖ Σωκράτης οὓς μὲν ἡ πόλις νομίζει θεοὺς
οὐ νομίζων, ἕτερα δὲ καινὰ δαιμόνια εἰσηγούμενος: ἀδικεῖ δὲ
καὶ τοὺς νέους διαφθείρων: τίμημα θάνατος
(D. L. 2.40
); cf. Dinarch. c.
fr. 85 M.: Δείναρχος Σωστράτου
Κορίνθιος Προξένῳ ᾧ σύνειμι βλάβης, ταλάντων δύο. Ἔβλαψέ
etc. Where the plaintiff's demand arose out of
various matters, he would give in his bill of plaint a detailed account,
specifying the items, etc., instead of including them in one gross estimate
([Dem.] c. Aphob.
iii. p. 853.30 f.): this seems to have been
considered the fairer method, and may be compared to our bill of particulars,
which the plaintiff delivers to the
defendant. He was said τιμᾶσθαι τῷ
([Dem.] c. Theocr.
p. 1343.70; c.
i. p. 792.74, p. 793.83), ἐπιγράφειν
(Aristoph. Pl. 480
Aeschin. c. Tim.
§ 16 lex, de F. L.
§ 14, etc.), and the penalty proposed is called ἐπίγραμμα
(Dem. c. Nausim. et
p. 985.2). When a charge was brought, not by a private
individual but by a magoistrate ex officio,
law required him in like manner to write down the penalty which he thought
the case merited ([Dem.] c. Macart.
p. 1076.75 lex
). After the defendant had been found guilty, the
prosecutor was called upon to support the allegation in the indictment and
to address the dicasts. Here he said whatever occurred to him as likely to
aggravate the charge, or incense the dicasts against his opponents. He was
not bound, however, to abide by the proposal made in the bill, but might, if
he pleased (in criminal charges probably only with the consent of the
court), withdraw his own proposal in favour of the counter-proposition of
the defendant (συγχωρεῖν τῷ τιμήματι,
[Dem.] c. Nicostr.
p. 1252.18; p. 1254.26;--c.
p. 1347.6). This was often done at the request of the
defendant himself, or of his friends ([Dem.] c. Theocr.
1343.70), but such a withdrawal of the original proposal was not binding
upon the dicasts (Platner, Proc. u. Klagen,
i. p. 199). If
the defendant thought the punishment proposed on the other side too severe,
he made a counter-proposition, naming the penalty which he considered would
satisfy the demands of justice (ἀντιτιμᾶσθαι,
Dem. c. Tinocr.
p. 743.138; Hesych. sub voce
p. 1252.18; τιμᾶν
[Dem.] c. Zenoth.
p. 886.15, c.
i. p. 794.80--in private actions, Dem. c.
ii. p. 878.10; i. p. 872.32). He 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 the dicasts. 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 freedom, to produce his wife and
children in court, to excite compassion (παράκλησις,
Hyper. c. Demosth.
col. 38; παραγωὴ τῶν παίδων καὶ γυναικῶν καὶ φίλων,
Hermogenes, Rhet. Gr.
ed. Walz, iv. p. 411; cf. Meier,
de Bon. Damn.
p. 226, and Lys. c. Alcib.
ed. Frohberger, Introduction, § 8 n.). After both parties had been
heard, the dicasts were called upon to give their verdict (τιμᾶν τῷ φεύγοντι;
§ 23, τῶν ἐσχάτων τιμᾶν
§ 7 θανάτου;
44, τὴν αἰκίαν χρημάτων ἔστι τιμῆσαι,
Here occurs a question about which there has been much difference of
opinion, e. g. whether the dicasts, in giving their 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. Schömann
and Boeckh (Sthh.
i.3 p. 441) hold the
latter opinion; Meier and Lipsius (Att. Process,
decide for the former (see also Wayte on Dem. c. Timocr.
743.138). Aristotle (Aristot. Pol.
, § § 3, 8, 9, S.) tells us that Hippodamus of
Miletus (πρῶτος τῶν μὴ πολιτευομένων ἐνεχείρησέ
τι περὶ πολιτείας εἰπεῖν τῆς ἀρίστης
) proposed that the
verdict should not be given by ballot (διὰ
), but that each dicast should bring in a tablet
with a special statement of his opinion (ἐν ᾧ
γράφειν εἰ καταδικάζοι ἁπλῶς τὴν δίκην, εἰ δ᾽ἀπολύοι ἁπλῶς,
κενὸν ἐᾶν, εἰ δὲ τὸ μὲν τὸ δὲ μή, τοῦτο
). Upon which proposal Aristotle remarks that its effect
would be to make each dicast a διαιτητής
that it was an object with most lawgivers that the dicasts should not confer
with each other (μὴ κοινολογεῖσθαι πρὸς
): and then he comments on the confusion that would
arise, if each dicast were allowed to propose a penalty different from that
submitted to him by the parties. From passages like Dem. c.
p. 676.167 (quoted above), and p. 688.205 (παρὰ τρεῖς μὲν ἀφεῖσαν ψήφους, τὸ μὴ θανάτῳ
ζημιῶσαι, πεντήκοντα δὲ τάλαντα ἐξέπραξαν
), it is
evident that the dicasts had to choose one or other of the two propositions
of the accuser and defendant; and this course was, perhaps, the only course
that could be adopted with so large a number of dicasts. 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.
p. 737.118. The course of
proceeding seems to have been as follows. The prosecutor usually proposed
the highest penalty which the law or the nature of the case would admit of,
and it was not unusual for the speakers to make allusions to the punishment
before the first verdict had been given. In the course of the trial there
might be various indications on the part of the dicasts of a disposition to
favour one side or the other; they were very animated listeners. They
interrupted the speaker to prevent his bringing in irrelevant matter
(Hyperid. pro Eux.
100.41; Dem. c. Boeot.
p. 1022.47) or, to ask for further information (Dem. c. Spud.
p. 1033.17; c. Stephan.
i. p. 1128.87: cf. Andoc. de
§ 70; Aeschin. de F. L.
7, etc.), and expressed their pleasure [p. 2.844]
displeasure at what was said in a most marked manner (θορυβεῖν,
Isocr. de Permut.
Aeschin. c. Tim.
§ 83; Aristoph. Wasps 622
§ 264; Lys. c.
§ 73 f.: cf. Lyc. c. Leocr.
§ 52; Dem. c. Eubul.
i. p. 1299.1, etc.). 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.
As a general rule, only one penalty might be imposed by the court, παθεῖν ἢ ἀποτῖσαι, ἀμφότερα δὲ μὴ
(Dem. c. Lept.
p. 504.155), though the law
sometimes gave more than one, e. g. death and confiscation of property for
φόνος ἑκούσιος, ἀτιμία
confiscation of property (Dem. c. Aristocr.
p. 551.113 lex; c. Neaer.
see also the decrees in C.
iv. No. 27 a, 50.33; i. No. 31, 1. 20; ii. No. 17, 50.51,
etc.). Sometimes the law expressly empowered the dicasts to impose an
additional penalty (προστίμημα
) besides the
ordinary one. Here the proposition emanated from the dicasts themselves, any
one of whom might move that the punishment allowed by the law should be
awarded. He was said προστιμᾶσθαι,
whole of the dicasts, if (upon a division) they adopted his proposals, were
Timocrates' law is said to
deprive the courts o the power of awarding τὰ
προστιμήματα τὰ ἐπὶ τοῖς ἀδικήμασιν ἐκ τῶν νόμων
(Dem. c. Timocr.
p. 700.2: cf. Lys.
1.16). For which wrongful acts such additional
punishment might be awarded we do not know: Demosthenes (l.c.
p. 713.41, and p. 732.103) mentions imprisonment for state
debtors and persons guilty of theft, and ἀτιμία
was probably awarded in a δίκη
(Boeckh, Kl. Schriften,
123). In some passages προστιμᾶν
understood in the same sense as τιμᾶν,
g. in [Dem.] c. Aristog.
i. p. 790.67, ἀλλ᾽ ὅτι πέντε ταλάντων προσετιμήσατε
: cf. Dinarch.
§ 12, πέντε
ταλάντων τιμῆσαι τούτῳ
(in the same speech which Lipsius
shows to be spurious, Leipz. Stud.
vi. pp. 319-331; τίμημα,
p. 796.87, is used in the special sense
of τίμημα χρημάτων,
p. 797.92); Herodian,
p. 205, etc. In other instances the preposition
in the verb προστιμᾶν
is used with reference to other matters, e. g.
Dem. c. Mid.
p. 528.44; p. 571.176; c. Everg. et
In public suits a compromise between the opposing parties was not permitted,
the state being directly or indirectly concerned in them; but private suits
were frequently settled by arrangement between the parties, even after the
trial had begun, and with the assistance of the dicasts (Isae.
§ § 17 f., 31; Dem. c.
p. 978.39 f.). With this exception the course of
proceeding in private actions with respect to the assessment of damages was
much the same as described above. The liability of the plaintiff to the
which was calculated upon the
sum demanded, operated as a check upon exorbitant demands, in addition to
that which we have already noticed. (Att. Process,
Lipsius, p. 208 ff.)
As to the amount of revenue derived by the Athenians from public fines, see
i.3 p. 439 f. As to ti/mhma
in the sense of the rateable value of
property with reference to the Athenian property tax, see EISPHORA