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The Council 

Christopher W. Blackwell, edition of January 23, 2003

page 20 of 24

· Powers to Punish ·

Under a few select circumstances the Council had the authority to punish Athenians, or at least to order them held in prison until a trial before a jury. For example, the Athenian democracy “out-sourced” the collection of taxes to τελωνικοί , or “tax-farmers”, men who paid for the right to collect taxes on behalf of the Athenians. Demosthenes suggests that the Council had special authority over these mean, and over others who owed money to the Athenian democracy:

Read about the evidence
Demosthenes (Dem. 24).

“You have a law in operation, as good a law as ever was enacted, that holders of sacred or civil moneys shall pay the money in to the Council House, and that, failing such payment, the Council shall recover the money by enforcing the statutes applicable to tax-farmers;and on that law the administration of the treasury depends” (Dem. 24.95).

Read about the evidence
Demosthenes (Dem. 24).

Demosthenes goes on to hint, at least, that it was in the power of the Council to imprison public debtors like the ones he mentioned above: “It follows that the whole business of the State must go to rack and ruin when, the payments on account of taxation being insufficient, there is a large deficiency, when that deficiency cannot be made up until towards the end of the year, and when, as regards the supplementary payments, neither the Council nor the law-courts have authority to imprison defaulters” (Dem. 24.98). This passage does not come out and say that the Council could imprison public debtors, but thi ironic statement would certainly be more effective if that were the case.

From earlier in the 4th century BCE, a passage from the orator Andocides gives more firm evidence that the Council had the power to imprison public debtors. Andocides tells the story of a certain Cephisius thus:

Read about the evidence
Andocides (Andoc. 1).
 
Plot on a Map
Athens.

Cephisius here purchased from the state the right to collect certain public rents, and obtained thereby a return of ninety minae from the farmers occupying the lands concerned. He then defaulted; and since he would have been placed in prison had he appeared in Athens, since it was laid down by law that any defaulting tax farmer may be so punished by the Council, he retired into exile” (Andoc. 1.93).

It seems, though, that while the Council could imprison public debtors, that imprisonment was not actually their punishment, but a way to keep them in town until they could be tried before a jury. Demosthenes quotes a law that makes this clear:

Read about the evidence
Demosthenes (Dem. 24).

“Law: Moved by Timocrates: if any Athenian citizens are now in jail or shall hereafter be imprisoned on impeachment by the Council, if the judgement against such prisoners be not delivered to the Judges by the Secretary of the Presidency in pursuance of the law of impeachment, be it enacted that the Eleven shall bring them before the Court within thirty days of the day on which they receive them into custody, unless prevented by public business, and, if so prevented, as soon as possible. Any Athenian qualified as a prosecutor may prosecute. If the culprit be convicted, the Court of Heliaea shall assess such penalty, pecuniary or otherwise, as he appears to deserve. If the penalty assessed be pecuniary, he shall be imprisoned until he has paid the full amount of the fine inflicted” (Dem. 24.63).

This law, if it is authentic (and it is important to remember that the laws quoted in Athenian orations are not always authentic), begins by assuming that some citizens have been imprisoned by the Council, and that some might be in the future. It goes on to limit the term of their imprisonment by setting time-limits for their trial before a jury. Their final punishment is up to the court of the Heliaea.

Such a law would be in keeping with the nature of the Council of the 500 under the Athenian democracy. This institution was very powerful, and so was potentially dangerous. In this matter, as in others that we have seen, the Athenians seem to have been very careful to limit the Council’s power.

Plot on a Map
Athens.

Further evidence of both the Council’s authority to imprison people under certain circumstances, and the careful limits that the Athenians placed on the Council’s power, comes from Demosthenes’ speech against Timocrates. In this speech, we can see that the Council had the authority to imprison people accused of treason against Athens. Demosthenes begins by quoting from the legal language of the Athenian democracy, without (at first) stating clearly what he is quoting:

Read about the evidence
Demosthenes (Dem. 24).

Demosthenes quotes, “Nor will I imprison any Athenian citizen who offers three sureties taxed in the same class as himself, except any person found guilty of conspiring to betray the city or to subvert popular government, or any tax-farmer or his surety or collector being in default” (Dem. 24.144).

So that is the fragment of legal language. But where does it come from? Demosthenes keeps his audience in suspence for a few more sentences, pausing to explain what it means:

Read about the evidence
Demosthenes (Dem. 24).

“This statute, gentlemen of the Jury, is not intended for the protection of people who have stood their trial and argued their case, but for those who are still untried and its purpose is that they shall not plead at a disadvantage, or even without any preparation at all, because they have been sent to jail” (Dem. 24.145).

So the rule that Demosthenes quoted is merely intended to allow citizens who have been accused, but not tried, to get out on bail, as it were. Finally, Demosthenes tells his audience where this phrase comes from, and why it is important:

Read about the evidence
Demosthenes (Dem. 24).

Demosthenes says that, “the formula, ‘I will not imprison any Athenian citizen,’ is not in itself a statute; it is merely a phrase in the written oath taken by the Council, to prevent politicians who are in the Council from caballing to commit any citizen to prison. Solon therefore, wishing to deprive the Council of authority to imprison, included this formula in the Councilors’ oath; but he did not include it in the judicial oath. He thought it right that a Court of Justice should have unlimited authority, and that the convicted criminal should submit to any punishment ordered by the court” (Dem. 24.146).

So, according to this orator at least, Solon himself, in the 6th century BCE, wrote this oath to limit the authority of the Council of 500; the Council could not hold people without bail, since only a (more democratic) jury-court should have that kind of power.

Read about the evidence
Demosthenes (Dem. 24).

For our understanding of the Council’s authority, however, it is significant that this fragment of the Councilor’s Oath contains one exception: the Councilors swear not to imprison anyone without setting bail, “except any person found guilty of conspiring to betray the city or to subvert popular government” (Dem. 24.144). So accused traitors could be held in confinment, by order of the Council, until their trial.

Finally, could the Council, on its own authority, put people to death without a trial? Two pieces of evidence suggest so, but they need to be read and considered carefully.

Read about the evidence
Isocrates (Isoc. 17).

The first is from a speech written by Isocrates; the speaker is a man who is suing a banker, Pasion, claiming that the banker defrauded him of all his money. At one point in the speech, the speaker claims that he had invested in a trading expedition, but that someone had made the accusation that the cargo of the ship was illegal merchandise. He says, “When I disputed this claim and demanded that the ship put to sea, those who make a business of blackmail so influenced the Council that at first I almost was put to death without a trial; finally, however, they were persuaded to allow someone to post bail for me” (Isoc. 17.42).

Plot on a Map
Athens.

This is the kind of evidence that makes the business of ancient history difficult. The speech, written by a resident of 4th century Athens, delivered by a resident of Athens to an Athenian jury, says very clearly that he, the defendant, was in danger of having the Council put him to death without a trial. But was the speaker really in such danger, or is this merely a rhetorical device to build sympathy for himself? We should note that he was not in fact, put to death, but posted bail and was released. (Perhaps we can conclude that having something to do with a contraband cargo put this man in the same category as the public debtors, and so the Council had the authority to hold him until we was tried by a jury, unless he posted bail.)

And along with the problem of the speaker’s sincerity, there is the problem of consistency: given the many checks on the authority of the Council, does it seem likely that it would have the power to execute someone, without trial, on the matter of a ship’s cargo?

Different conclusions are possible, but most students of Athenian democracy would probably take the nature of the specific evidence (an offhand, rhetorical comment about what “almost happened”) and the majority of other evidence (which suggests that the Council’s authority to take final action, without the more democratic institutions of the Assembly or the lawcourts) and decide not to jump to any conclusions.

Read about the evidence
Xenophon (Xen. Hell.).
Diodorus (Diod.).
Aristotle (Aristot. Ath. Pol.).
 
Plot on a Map
Athens.
Piraeus.

One other piece of evidence is more direct. Aristotle describes how, after the Tyranny of the Thirty had come to an end in the winter of 403-402 BCE, the Athenians went about restoring their democracy and trying to bring an end to the (inevitable) bitterness that threatened to divide the population. (The historical development of the Council, including its role in these events, is discussed in another article; for the Tyranny of the Thirty generally, see Xen. Hell. 2.3-4; Diod. 14.3-6; Diod. 14.32-33; source for this date: OCD3). During this critical time, Aristotle says, a certain Archinus acted skillfully to bring the population of Athens back together; for example, he discouraged many of those who had supported the Thirty Tyrants from emigrating from the city, keeping them in Athens until they saw that they were not to be persecuted (Aristot. Ath. Pol. 40.1). Aristotle continues, “This seems to have been a statesmanlike act of Archinus; as was also later his indicting as unconstitutional the decree of Thrasybulus admitting to citizenship all those who had come back together from Piraeus, some of whom were clearly slaves, and his third act of statesmanship was that when somebody began to stir up grudges against the returned citizens, he arraigned him before the Council and persuaded it to execute him without trial, saying that this was the moment for them to show if they wished to save the democracy and keep their oaths; for by letting this man off they would incite the others too, but if they put him out of the way they would make him an example to everybody” (Aristot. Ath. Pol. 40.2).

So these were the acts of Archinus to preserve the Athenian people: he prevented mass emigration of a portion of the citizens; he prevented the wholesale enfranchisments, that is, the indiscriminate granting of citizenship to anyone who had opposed the tyranny; and he persuaded the Council to execute, without trial, someone who was stirring up grudges against the supporters of the deposed Tyrants. In short, Archinus’ policy seems to have been to do whatever he could to erase the divisions among the people that had arisen from the Tyranny. Citizens were citizens, and slaves were slaves, regardless of which side anyone had supported in previous days.

This is direct and positive evidence for the Council executing someone without trial. But, as with the evidence from Isocrates, this evidence requires careful consideration. Was execution-without-trial a normal privilege of the Council, or was it an extreme measure, technically illegal but (arguably) justified in this one extraordinary circumstance, when the city was trying to restore the rule of law after overthrowing a brutal tyranny? Again, the mass of evidence that we have, which shows how careful the Athenians limited the authority of the Council, would probably lead to the conclusion that, Aristotle’s account notwithstanding, the Council could not normally execute Athenian citizens without sending them to a democratic jury for a trial.

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