§29.13Διὰ τί ποτε, ὅταν καὶ τῷ φεύγοντι καὶ τῷ διώκοντι φαίνωνται αἱ ψῆφοι ἴσαι, ὁ φεύγων νικᾷ;
Why is it that, when the votes appear equal to both the defendant and the prosecutor, the defendant wins?
ἢ ὅτι ὁ μὲν φεύγων ἐν τῷ ἀγῶνι μόνον ἀκήκοεν αὐτοῦ πρὸς ἃ δεῖ αὐτὸν ἀπηγορεῖσθαι, καὶ τοὺς μάρτυρας παρασχέσθαι πρὸς 〈τὸ〉 τὰ κατηγορημένα ἔχεσθαι, εἴ τι μέλλουσιν ὠφελήσειν;
Or is it because the defendant, in the trial, has only heard from him the things against which he must defend himself, and must provide witnesses to contest the accusations, if they are to be of any help?
οὐ ῥᾴδιον δὲ τὸ μαντεύσασθαί τινα ὧν δεῖ αὐτὸν παρασκευάσασθαι ἢ μάρτυρας ἢ ἄλλο τεκμήριον ὅτι οὐθὲν ἀδικεῖ.
And it is not easy for anyone to divine what witnesses or other evidence he must prepare to show that he does no wrong.
τῷ δὲ διώκοντι ἔστιν ὅπως βούλεται, καὶ πρὸ τοῦ τὴν δίκην κλητεύσασθαι, ἐνστήσασθαι τὸ πρᾶγμα, καὶ ἤδη κεκληκότα, πλασάμενον ὅ τι βούλεται πιθανόν, κατηγορεῖν αὐτοῦ.
Whereas for the prosecutor, it is possible as he pleases, even before summoning the case, to initiate the matter, and having already summoned, to accuse him by fabricating whatever plausible thing he wishes.
ὁρῶν δὴ κατὰ πάντα ταῦτα ἐλαττούμενον ὁ νομοθέτης τὸν φεύγοντα, προσέθετο τῷ φεύγοντι ὅ τι ἂν οἱ δικασταὶ ἀμφιδοξήσωσιν.
Seeing therefore that the defendant is at a disadvantage in all these respects, the lawmaker added to the defendant’s side whatever the judges might doubt.
ἀλλὰ μὴν καὶ τοῦτ’ ἄν τις ἴδοι. ἐν γὰρ τοῖς φόβοις ὄντες πολλὰ παραλιμπάνουσιν ὧν αὐτοὺς ἔδει εἰπεῖν ἢ πρᾶξαι, οἱ δὲ φεύγοντες ἀεὶ ἐν μείζοσι κινδύνοις ὡς ἐπὶ τὸ πολὺ τυγχάνουσιν ὄντες, ὥστ’ εἰ παραλιμπάνουσιν ὧν δεῖ αὐτούς, εἴπερ ἐξισοῦνται τοῖς δικαίοις, δῆλον ὅτι εἰ μὴ παρελίμπανον, ἐκράτουν ἄν.
And indeed one might also see this: for those who are in fears omit many of the things they ought to say or do, and defendants always happen to be in greater dangers for the most part; so that if they omit what they ought, even if they are made equal to the just claims, it is clear that if they had not omitted them, they would have prevailed.
ἔτι δὲ ἕκαστος ἡμῶν μᾶλλον ἂν προέλοιτο τοῦ ἀδικοῦντος ἀποψηφίσασθαι ὡς οὐκ ἀδικεῖ ἢ τοῦ μὴ ἀδικοῦντος p. καταψηφίσασθαι ὡς ἀδικεῖ, οἷον εἴ τις φεύγει δουλείας ἢ ἀνδροφονίας.
Furthermore, each of us would rather choose to acquit the wrongdoer as not doing wrong, than to p. condemn the non-wrongdoer as doing wrong, as for example if someone is a defendant in a case of slavery or homicide.
τούτων γὰρ ἑκάστου ὄντων, ἃ κατηγορεῖ αὐτῶν, μᾶλλον ἂν ἀποψηφίσασθαι ἑλοίμεθα ἢ μὴ ὄντων καταψηφίσασθαι.
For if each of these crimes actually exists of which he accuses them, we would rather choose to acquit than to condemn when they do not exist.
ἔστι γάρ, ὅταν τις ἀμφιδοξῇ, τὰ ἐλάττω τῶν ἁμαρτημάτων αἱρετέον.
For when one is in doubt, the lesser of the errors must be chosen.
δεινὸν γὰρ καὶ τὸ τοῦ δούλου ὡς ἐλεύθερός ἐστι καταγνῶναι· πολὺ δὲ δεινότερον, ὅταν τις τοῦ ἐλευθέρου ὡς δούλου καταψηφίσηται.
For it is a terrible thing also to adjudge a slave as being free; but it is much more terrible when one condemns a free man as being a slave.
ἔτι δὲ ἐὰν ὁ μὲν τύχῃ ἐγκαλῶν, ὁ δὲ ἀμφισβητῶν ὑπὲρ ὁτουοῦν, οὐκ εὐθὺς οἰόμεθα δεῖν ἀποδοῦναι τῷ ἐγκαλοῦντι, ἀλλὰ νέμεσθαι τὸν κεκτημένον, ἕως ἂν κριθῇ.
Furthermore, if one happens to accuse and the other to dispute over anything whatsoever, we do not think we must immediately give it back to the accuser, but that the possessor should enjoy it until it is decided.
τὸν αὐτὸν δὲ τρόπον καὶ ἐπὶ τῶν πλειόνων, ὅταν ἰσάζῃ τὸ πλῆθος τῶν τε φασκόντων ἀδικεῖν καὶ τῶν μὴ ὁμολογούντων, ὥσπερ ὅτε ἐξ ἀρχῆς ὁ μὲν ἐνεκάλει, ὁ δὲ ἀπηρνεῖτο, οὐκ οἰόμεθα δεῖν τὸν νομοθέτην προστιθέναι τῷ ἐγκαλοῦντι, ἀλλὰ τὸν φεύγοντα κύριον εἶναι, ἕως ἂν ὑπεροχήν τινα ἔχῃ ὁ ἀδικῶν.
In the same way also regarding the majority, when the number of those claiming that an injustice has been done is equal to those who do not agree, just as at the beginning when the one accused and the other denied, we do not think the lawmaker should side with the accuser, but that the defendant should have authority, until the wrongdoer has some advantage.
ὁμοίως δὲ καὶ ἐπὶ τῶν κριτῶν, ἐπειδὴ οὐδεμίαν ὑπεροχὴν ἰσασθεισῶν τῶν ψήφων, κατὰ χώραν εἴασεν ὁ νομοθέτης ἔχειν, ἔτι δὲ τῶν μὲν ἀξιολόγων ἁμαρτημάτων μεγάλαι καὶ αἱ κολάσεις εἰσίν, ὥστε ἀδίκως μὲν καταψηφισαμένοις καὶ μὴ γνοῦσιν οὐκ ἔστιν ἐπανορθοῦσθαι καιρὸν λαβόντας·
Similarly also regarding the judges, since there is no advantage when the votes are equal, the lawmaker allowed things to remain as they were. And furthermore, the punishments for significant errors are also great, so that if they have condemned unjustly and did not realize it, there is no opportunity for them to correct it later.
ἀπολύσασι δὲ παρὰ τὸ προσῆκον, εἰ μὲν οὕτως εὐλαβῶς ὥστε μηθὲν ἔτι ποτὲ ἁμαρτεῖν, τί ἂν καὶ μέγα ἡμαρτηκότες οἱ κριταὶ εἴησαν, τοιοῦτον ἄνθρωπον ἀπολύσαντες θανάτου;
On the other hand, if they have acquitted inappropriately, if indeed he is so cautious as never to err again, what great error would the judges have committed in releasing such a person from death?
εἰ δέ τι ἐξ ὑστέρου ἁμαρτάνοι, δι’ ἀμφότερα ἂν αὐτὸν νῦν κολάζεσθαι ἀξιοῖ.
And if he should commit some error afterward, it would be deemed right for him to be punished now for both.
ἢ ὅτι ἀδικωτέρου μέν ἐστιν ἀνδρὸς ταῦτα ἀδικεῖν ἃ ἧττον εἰκός ἐστιν ἀδίκως ἐγκαλεῖσθαι;
Or is it because it belongs to a more unjust man to commit those wrongs in respect of which it is less likely that he is being accused unjustly?
τὸ μὲν γὰρ ἀδικεῖν καὶ δι’ ὀργὴν καὶ διὰ φόβον καὶ δι’ ἐπιθυμίαν καὶ δι’ ἄλλα πολλὰ γίνεται, καὶ οὐ μόνον ἐκ προνοίας· τὸ δὲ ἀδίκως ἐγκαλεῖν ὡς τὸ πολὺ ἐκ προνοίας ἐστίν.
For committing injustice occurs both through anger, fear, desire, and many other things, and not only with forethought; whereas accusing unjustly is for the most part with forethought.
ὥστε ἐπεὶ ἴσαι αἱ ψῆφοι γεγόνασιν, τὸ δὲ ἀδίκως τὸν ἐγκαλοῦντα ἐγκαλεῖν καὶ τὸν φεύγοντα ἀδικεῖν, φαύλου κριθέντος τοῦ ἀδίκως ἐγκαλοῦντος τὸ νικᾶν τῷ φεύγοντι ὁ νομοθέτης ἀπένειμεν.
So that since the votes have become equal, and the accuser’s accusing unjustly and the defendant’s doing wrong are equal, the one who accuses unjustly having been judged more base, the lawmaker assigned the victory to the defendant.
αὐτοὶ οὕτως ἔχομεν πρὸς τοὺς θεράποντας, ὥστε ὅταν ὑποπτεύσωμέν τι αὐτοὺς ἡμαρτηκέναι καὶ μηθὲν ἀκριβὲς ἔχωμεν, ἀλλ’ ὅμως αὐτοὺς ὑπολαμβάνωμεν πεπραχέναι, οὐκ εὐθὺς ἐπὶ τὸ κολάζειν ἐρχόμεθα· καὶ ἐὰν μηθὲν μᾶλλον δυνώμεθα ἐξετάσαι, ἀφίεμεν ταύτης τῆς αἰτίας.
We ourselves behave in this way toward our servants, so that when we suspect they have committed some error and have nothing precise, but nevertheless assume that they have done it, we do not immediately proceed to punish them; and if we are unable to investigate any further, we acquit them of this accusation.
ἔτι μείζω μὲν ἀδικεῖ ὁ ἐκ προνοίας ἀδικῶν ἢ ὁ μὴ ἐκ προνοίας.
Furthermore, the one who does wrong with forethought commits a greater injustice than the one who does not.
ὁ μὲν δὴ συκοφαντῶν ἀεὶ ἐκ προνοίας ἀδικεῖ, ὁ δὲ ἕτερόν τι ἀδικῶν τὰ μὲν δι’ ἀνάγκην, τὰ δὲ δι’ ἄγνοιαν, τὰ δὲ ὅπως ἔτυχεν ἀδικεῖν αὐτῷ συμπίπτει.
Indeed, the false accuser always does wrong with forethought, whereas for the one who commits some other wrong, it happens that he does wrong sometimes through necessity, sometimes through ignorance, and sometimes by chance.
ὅταν δὲ ἴσαι γένωνται αἱ ψῆφοι, ὁ μὲν διώκων κέκριται ὑπὸ τῶν ἡμίσεων ἐκ προνοίας ἀδικεῖν, ὁ δὲ φεύγων ὑπὸ τῶν λοιπῶν αὖ ἀδικεῖν μέν, οὐ μέντοι γε ἐκ προνοίας ὥστε ἐπεὶ ἀδικεῖν μείζω κέκριται ὁ διώκων τοῦ φεύγοντος, εἰκότως ὁ νομοθέτης νικᾶν ἔκρινε τὸν τὰ ἐλάττω ἀδικοῦντα.
But when the votes become equal, the prosecutor is judged by half of them to do wrong with forethought, while the defendant is judged by the rest to do wrong indeed, but not with forethought; so that since the prosecutor is judged to commit a greater injustice than the defendant, reasonably the lawmaker judged that the one committing the lesser wrong should win.
ἔτι δὲ ἀεὶ μὲν ἀδικώτερός ἐστιν ὁ μὴ οἰόμενος λανθάνειν ὃν ἀδικεῖ καὶ ὅμως ἀδικῶν, ἢ ὁ οἰόμενος λανθάνειν.
Furthermore, the one who does not think he will escape the notice of the one he wrongs, and yet does wrong, is always more unjust than the one who thinks he will escape notice.
ὁ μὲν γὰρ ἀδίκως τινὶ ἐγκαλῶν οὐκ οἴεται λανθάνειν τοῦτον ὃν συκοφαντεῖ, οἱ δ’ ἄλλο τι ἀδικοῦντες ὡς ἐπὶ τὸ πολὺ οἰόμενοι λανθάνειν ὃν ἀδικοῦσιν ἐπιχειροῦσιν ἀδικεῖν, ὥστε ἀδικώτεροι καὶ ἂν κρίνοιντο οἱ διώκοντες ἢ οἱ φεύγοντες.
For the one who accuses someone unjustly does not think he escapes the notice of the one he slanders, whereas those who commit some other wrong for the most part attempt to do wrong thinking they will escape the notice of the one they wrong; so that the prosecutors would be judged more unjust than the defendants.