The History of the Council

Christopher W. Blackwell, edition of January 23, 2003

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· Between Oligarchy and Tyranny ·

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Aristotle (Aristot. Ath. Pol.).

This oligarchic government lasted only four months before it was replaced by another government in which the power was in the hands of 5000 Athenians—more democratic, but still a far cry from the radical democracy defined by Cleisthenes (Aristot. Ath. Pol. 33.1). That government, in turn, lasted only a short time before “the People quickly seized control of the constitution from them” (τούτους μὲν οὖν ἀφείλετο τὴν πολιτείαν ὁ δῆμος διὰ τάξους) (Aristot. Ath. Pol. 34.1).

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Andocides (Andoc. 1).

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Athens.

A speech by Andocides quotes the first decree issued by the restored democracy, in 410 BCE (source for date: OCD³): “Enacted by the Council and People. Prytany of the tribe Aeantis. Secretary: Cleigenes. President: Boethus. The enactment following was framed by Demophantus and his colleagues. The date of this decree is the first sitting of the Council of Five Hundred, chosen by lot, at which Cleigenes acted as Secretary. If anyone shall suppress the democracy at Athens or hold public office after its suppression, he shall become a public enemy and be slain with impunity; his goods shall be confiscated and a tithe given to the Goddess [i.e. Athene — CWB]” (Andoc. 1.96). Again, we should note that this decree defines the restoration of the Democracy in terms of the Council: “the first sitting of the Council of Five Hundred, chosen by lot” (ἄρχει χρόνος τοῦδε τοῦ ψηφίσματος ἡ βουλὴ οἱ πεντακόσιοι οἱ λαχόντες τῷ κυάμῳ) (Andoc. 1.96).

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Lysias (Lys. 30).

Once the oligarchy had been overthrown in 410 BCE, the restored democratic government immediately set up a body of “Law Publishers” (ἀναγραφεῖς τῶν νόμων) to publish all of the laws, especially those of Draco and Solon (IG I³ 104.5-6; Lys. 30.2; Lys. 30.25; source for date: Hansen, Athenian Democracy, 162-3). Nicomachus was in charge of this board, as “Commissioner of Laws” (τῶν νόμων ἀναγραφεὺς), and was originally supposed to complete publication in four months (Lys. 30.2). The board spent six years, however, compiling and publishing Solon’s body of laws (Lys. 30.2-3). The published laws, which included the homicide law of Draco and laws regarding the powers of the Council (ML 86; IG I³ 105) were inscribed on the wall of the Stoa Basileios in the Agora (Lys. 30.2-3).

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Xenophon (Xen. Hell.).
Diodorus (Diod.).

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Arginousae.
Aegean.

In 406 BCE, the Athenians won a naval victory over the Spartans near the Arginousae islands in the Aegean—the battle is described at Xen. Hell. 1.6.24-35 and (quite differently) at Diod. 13.76-79 and Diod. 13.97-100 (source for date: OHCW). After the battle, the Athenians launched an effort to rescue their men from some disabled ships, but a storm prevented the rescue. This battle and the failed rescue attempt set the stage for a famous miscarriage of justice on the part of the Athenian democracy, in which the Council played an important role.

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Xenophon (Xen. Hell.).

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Athens.

Of the eight generals who had taken part in the battle, only six returned to Athens, and these were six made statements about the battle in front of the Council (Xen. Hell. 1.7.1-3). Timocrates proposed to the Council that they should be imprisoned and tried by the Assembly, whereupon a meeting of the Assembly was called (Xen. Hell. 1.7.3-4). Xenophon says that the generals had written a letter to both the Council and the Assembly blaming the storm for their failure to rescue the sailors, and a certain Theramenes held this up as evidence that the generals, alone, were to blame (Xen. Hell. 1.7.4). Xenophon goes on to note that Theramenes had been present at the battle and had, in fact, been given the job of rescuing the men (Xen. Hell. 1.7.5).

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Xenophon (Xen. Hell.).

Each of generals gave a speech in his own defense at this meeting of the Assembly, but Xenophon says that “These speeches were short, since they were not allowed to speak for the length of time permitted by law” (Xen. Hell. 1.7.5). Despite some public sympathy for the generals, the Athenians decided “that the matter should be postponed to another meeting of the Assembly (for by that time it was late in the day and they could not have distinguished the hands in the voting), and that the Council should draft and bring in a proposal regarding the manner in which the men should be tried.” (Xen. Hell. 1.7.7).

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Xenophon (Xen. Hell.).

According to Xenophon, Theramenes and the others opposed to the generals bribed a man named Callixeinus, who was serving on the Council at the time (see Xen. Hell. 1.7.9) to testify against the generals when the Council met next (the festival of the Apaturia caused a delay of several days between the first Assembly and the next meeting of the Council) (Xen. Hell. 1.7.8-9). When the Assembly was convened, the Council brought to it a proposal (γνώμην) written by Callixeinus (Xen. Hell. 1.7.9). The proposal stated that there would be no more speeches on the matter of the generals, but that the Assembly would go straight to a vote; the voting would be by by tribes, using pebbled dropped in urns (διαψηφίσασθαι Ἀθηναίους ἅπαντας κατὰ φυλάς) (Xen. Hell. 1.7.9). The question on which they would vote, as Xenophon reports it, was loaded: “[Did] the generals seem guilty of not picking up the men who had won the naval battle?” (δοκοῦσιν ἀδικεῖν οἱ στρατηγοὶ οὐκ ἀνελόμενοι τοὺς νικήσαντας ἐν τῇ ναυμαχίᾳ) (Xen. Hell. 1.7.9). The generals had admitted as much, but claimed that the storm made it impossible. If the generals were found to be guilty by the voting, the proposal said, they would be put to death by the Eleven, and their property would be confiscated to the state, with one tenth of it going to the treasury of Athene (Xen. Hell. 1.7.10).

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Xenophon (Xen. Hell.).

Euryptolemus and a few others then issued a charge of “illegal proposal” (παράνομα φάσκοντες συγγεγραφέναι) against Callixeinus, a procedure designed to prevent the Assembly from violating the law (Xen. Hell. 1.7.12). In a speech, as reported by Xenophon, Euryptolemus explained in what way this proposal was illegal, when he asks his fellow Athenians: “What is it, pray, that you fear, that you are in such excessive haste? Do you fear lest you will lose the right to put to death and set free anyone you please if you proceed in accordance with the law, but think that you will retain this right if you proceed in violation of the law, by the method which Callixeinus persuaded the Council to report to the people, that is, by a single vote?” (Xen. Hell. 1.7.26). If the Athenians want to put the generals on trial they may, Euryptolemus says, but by the legal procedure: “let the men be tried, each one separately, and let the day be divided into three parts, one wherein you shall gather and vote as to whether you judge them guilty or not, another wherein the accusers shall present their case, and another wherein the accused shall make their defence” (Xen. Hell. 1.7.23).

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Xenophon (Xen. Hell.).

Xenophon says that “some of the People clearly favored this, but the majority shouted that it was a terrible thing is anyone should not let the People do whatever they wanted” (τοῦ δὲ δήμου ἔνιοι ταῦτα ἐπῄνουν, τὸ δὲ πλῆθος ἐβόα δεινὸν εἶναι εἰ μή τις ἐάσει τὸν δῆμον πράττειν ὃ ἂν βούληται) (Xen. Hell. 1.7.13). Euryptolemus and the others, fearing that they would be put on trial as well, withdrew their charge (Xen. Hell. 1.7.13).

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Xenophon (Xen. Hell.).

The proposal of Callixeinus almost failed to come to a vote, becuase the members of the Council who were serving as Prytanes (τῶν δὲ πρυτάνεών τινων) said that they would not allow it, since the “vote was illegal” (τὴν διαψήφισιν παρὰ τὸν νόμον) (Xen. Hell. 1.7.14).

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Xenophon (Xen. Hell.).
Plato (Plat. Gorg.).
Plato (Plat. Apol.).
Xenophon (Xen. Mem.).

Xenophon continues his account: “Then the Prytanes, stricken with fear, agreed to put the question—all of them except Socrates, the son of Sophroniscus; and he said that in no case would he act except in accordance with the law” (Xen. Hell. 1.7.15). This Socrates was the famous philosopher, and according to other ancient sources he was not only serving as one of the Prytanes of the Council during these events, but was Epistates, “President” on this day. Xenophon’s Memorabilia, he says that Socrates “was on the Council and had taken the counsellor’s oath by which he bound himself to give counsel in accordance with the laws, it fell to his lot to preside in the Assembly when the people wanted to condemn Thrasyllus and Erasinides and their colleagues to death by a single vote. That was illegal, and he refused the motion in spite of popular rancour and the threats of many powerful persons” (Xen. Mem. 1.1.18; see also Plat. Gorg. 473e; Plat. Apol. 32b; Xen. Mem. 4.4.2).

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Plato (Plat. Gorg.).

In Plato’s Gorgias, Socrates himself describes these events to Polus with a certain amount of dark humor (the context is a discussion of how it is better to suffer injustice than to commit it): “Polus, I am not one of your statesmen: indeed, last year, when I was elected a member of the Council, and, as my tribe held the Presidency, I had to put a question to the vote, I got laughed at for not understanding the procedure” (Plat. Gorg. 463e); by “not understanding the procedure,” Socrates is referring to the illegal procedure of trying all the generals with a single vote, and with no opportunity for them to defend themselves.

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Xenophon (Xen. Hell.).
Diodorus (Diod.).

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Athens.

Despite the refusal of Socrates the Epistates to allow the vote, the procedure continued in the Assembly, with Euryptolemus giving a speech on behalf of the generals (Xen. Hell. 1.7.16-33) and putting forward a motion that “the men should each be given a separate trial in accordance with the decree of Cannonus” (κατὰ τὸ Καννωνοῦ ψήφισμα κρίνεσθαι τοὺς ἄνδρας δίχα ἕκαστον) (Xen. Hell. 1.7.34); the decree of Cannonus was the law that governed the trial and punishment of anyone who did harm to the people of Athens (Xen. Hell. 1.7.20). The Assembly voted in favor of the Council’s original proposal, voted once on the guilt of all eight generals, and the six generals who were in Athens were put to death (Xen. Hell. 1.7.34; for a more condensed version of these events, see Diod. 13.101.1-7).

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Xenophon (Xen. Hell.).
Demosthenes (Dem. 21).
Aeschines (Aeschin. 2).
Isocrates (Isoc. 15).
Aristotle (Aristot. Ath. Pol.).

In this case, the Council clearly failed in its function as a check on the vicissitudes of the larger Assembly. The Athenians themselves realized this, according to Xenophon, who says: “And not long afterwards the Athenians repented, and they voted that complaints (προβολαί) be brought against any who had deceived the people, that they provide men to stand as guarantors until such time as they should be brought to trial, and that Callixeinus be included among them” (Xen. Hell. 1.7.35; “probolai” were complaints against someone who has allegedly harmed the state and were heard before the Assembly; see Dem. 21.193, Aeschin. 2.145, Isoc. 15.314, Aristot. Ath. Pol. 43.5, Aristot. Ath. Pol. 59.2). How did the trial of the generals continue after the epistates refused to allow the vote?

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Xenophon (Xen. Hell.).

There are two possibilities, with no obvious reason to prefer one over the other. First, we might note that Xenophon’s account of events includes several clear examples of improper procedure: the generals were not allowed to speak in their own defense for the proper amount of time (Xen. Hell. 1.7.5); Callixeinus is said to have been bribed to author the Council’s proposal (Xen. Hell. 1.7.8-9); his proposal (γνώμη) was itself illegal (Xen. Hell. 1.7.9-10; Xen. Hell. 1.7.26); Euryptolemus and the others were intimidated into withdrawing their charge of “illegal proposal,” rather than letting it come to a vote (Xen. Hell. 1.7.13). Given these irregularities, we could easily imagine that the Assembly simply went ahead with a vote on the guilt of the generals, without the sanction of Socrates the epistates.

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Xenophon (Xen. Hell.).
Aristotle (Aristot. Ath. Pol.).

The second possibility is this: Xenophon tells us at Xen. Hell. 1.7.15 that Socrates alone refused to acceed to the Assembly’s wishes. He then says (Xen. Hell. 1.7.16) that “after these things” (μετὰ δὲ ταῦτα) Euryptolemus gave a speech (which he quotes), and there was the vote. It is possible that Xenophon’s phrase “after these things” is speaking of a delay from one day to the next. On the next day someone else would have been serving as Epistates, since each Epistates served for one day and one night (Aristot. Ath. Pol. 44.1).

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Xenophon (Xen. Hell.).

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Arginousae.

The affair of the Arginousae Generals shows us why the Athenians gave the Council the authority it had over the Assembly—even though in this case the Council failed in that role. This affair also shows us an unfortunate side effect of the restoration of democracy after the oligarchic coup of 411. During the proceedings against the generals, the Athenian people gathered in Assembly cried out “that it was a terrible thing is anyone should not let the People do whatever they wanted” (τὸ δὲ πλῆθος ἐβόα δεινὸν εἶναι εἰ μή τις ἐάσει τὸν δῆμον πράττειν ὃ ἂν βούληται) (Xen. Hell. 1.7.13). Reacting against the recent oligarchy, the newly restored democracy wanted no limits on its right to act. Only later, when it was too late, did the Athenians realize that they had been mistaken in assuming that an Assembly, acting without regard to the law and without the calming authority of a democratic Council, could ensure justice (see Xen. Hell. 1.7.35).

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