HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 Initiative and Decision: the Separation of Powers in Fourth-Century Athens Mogens Herman Hansen I N THIS PAPER I shall argue that a basic form of separation of powers in fourth-century Athenian democracy 1 consists in a separation of initiative and decision: a decision-making body of government is not allowed to take an initiative, and, conversely, a body of government empowered to take an initiative is never allowed to make a decision on any important issue. I begin with a short discussion of what a body of government is, and an inventory of the bodies of government to be found in fourth-century Athens. By way of introduction, I shall give a sur­ vey of the accepted opinion about the Athenian bodies of govern­ ment. Leaving aside the Council of the Areopagus, which was in fact a relic of the aristocratic state, all scholars seem to assume a basic four-fold division of the Athenian bodies of government, into the ecciesia, the boule, the archai, and the dicasteria. The problem is never discussed, but historians habitually organize their account of the Athenian political structure into four chapters or sections, each dealing with one of these four agencies. As typical and prominent examples I refer to Busolt-Swoboda, Glotz, Ehren­ berg, Gomme, Andrewes, Will, Mosse, and Ernst Meyer.2 There is 1 The Athenians had of course no developed theory about any 'separation of powers' in our sense. And so the observations offered here concern the working of the institutions rather than the ideology. The numerous constitutional reforms in fourth-century Athens are sufficient proof that there must have been a constant and lively political debate about constitutional principles, but it is lost to us apart from some important remarks made especially in forensic speeches delivered in connection with the graphe paranomon or the graphe nomon me epitedeion theinai. This lack of information is borne out by a survey of the relevant sources-inscriptions, forensic speeches, the 'essays' by Isocrates, Aristotle's Politics and Ath.Pol. Constitutional analysis cannot be found in inscriptions, and only scraps of the law-code are preserved. The orators care for political theory only when it suits their purpose. So we must turn to Aristotle's Politics, which deals with democracy in general and pays very little attention to the particular form of democracy practised in fourth-century Athens. The Ath.Pol. is a curious accumulation of facts about details with­ out any attempt to analyse the information given; and Isocrates has some analysis, but is hopelessly vague. There must have been an important debate about the interaction of the bodies of government, but it is lost and we can see only the results of the debate reflected in the constitutional reforms and in the working of the institutions. 2 G. Busolt and H. Swoboda, Griechische Staatskunde II (Munich 1926) 986-1168: Die 345 HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 346 INITIATIVE AND DECISION only one source (never quoted) which directly supports this analy­ sis, Demosthenes' first speech Against Aristogeiton 20: d yap ru; v/lWV eeerauaz povAeral ri nor' euri ro airlOv Kai ro nolOvv T11v POVAr,V uVAAeyeaOal, rov ~ij/lOV de; rr,v eKKA1'Jaiav dvapaivelv, ra ~zKaanjpla nA1'JPOVUOal, rae; evae; dpxae; rale; veale; 8Kovaae; vneeleval, Kai navra ~z' wv tT no Ale; oiKenal Kai ucfJ,eral yiyvEaOaz, rove; VO/lOVe; evprwez ... (compare Arist. Pol. 1317b36-37). This 'quartering of the bodies' in classical Athens-to use a metaphor from criminal law-is commonly accepted a priori, and I know of no work about Athenian political structure entitled "How many bodies of government-and of what kind-did the Athenians have?" This traditional four-fold division of the agen­ cies is unsatisfactory, and in its place I shall suggest the following analysis of the political structure in fourth-century Athens: CITIZEN GROUP AGENCY o oijp,o<; ---------" eKKM,aia 01 vop,o(}eraz olop,wp,oKoree; (6000) --« ra olKauujpza " povl~ 0" q; 0" vnep l er1'J yeyov6ree; ---- a" dpXai ----« a" allal dpXai 0" povlop,evOi ole; e~eurlv --- 0" p1jropee; This arrangement differs in several important respects from the traditional one, and I shall emphasize the following five points: (1) The demos is embodied only in the ecclesia and never in the dicasteria. 3 (2) The nomothetai are recorded as a separate body of Gemeindeversammlung - Der Rat der Fiinfhundert und der Rat vom Areiopag - Die Beam­ ten - Das Geschworengericht. G. Glotz, The Greek City (London 1929) 152-262: The Assembly of the People - The Council - The Magistrates - Justice (the people's court and homicide courts). V. Ehrenberg, The Greek State (Oxford 1960) 52-74: The Assembly of Citizens - The Council - The Officials - The Popular Courts. A. W. Gomme, "The Working of the Athenian Democracy," in More Essays in Greek History and Literature (Oxford 1962) 177-93: the assembly - the council - the officers of state - the dicasteries. A. An­ drewes, The Greeks (London 1967) 167-83: the assembly - the council - the magistrates - the administration of justice (the body of jurors). E. Will, Le monde grec et rOrient I (Paris 1972) 448-58: l'Ecclesia - la Boule - les arkhai - I'Heliee. Cl. Mosse, Le monde grec et I'Orient II (Paris 1974) 133-50: I'Ecclesia - la Boule - les magistrats - I'organisation judiciaire (l'Heliee, l'Areopage). E. Meyer, Einfuhrung in die antike Staatskunde (Darmstadt 1968) 88-97: Volksversammlung - Der Rat - Die Beamten - Volksgericht. 3 Cf. M. H. Hansen, "Demos, Ecclesia and Dicasterion in Classical Athens," GRBS 19 (1978) 127-46. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 347 government and a very important one, since the nomothetai, after 403/2, were entrusted with the passing of all general standing rules, all nomoi. 4 (3) Following most scholars I accept the thirty­ year age-limit for all archai, and not only for the boule. s (4) The prrroper;,6 of course, do not form a 'body of government' as they have no official position and no authority. Nevertheless they are recognized in our sources as a specific agency in the political pro­ cess, and 0 pOVAOpeVOr; rwv )t()'f/vaiwv oir; l¢earzv, frequently men­ tioned as originator in laws and decrees, is perhaps the protagonist of Athenian democracy. Taken together, ol pOVAOpeVOI were (in theory) identical with 0 bijpor;, but in reality there was a gulf between the Athenian people and the small number of active Athe­ nian citizens. And apart from sheer numbers there is a fundamen­ tal difference between hoi boulomenoi and the people: 0 bijpoc; is a collective body composed of anonymous and irresponsible citizens (Thuc. 3.43.4-5, 8.1.1). oi fiOVAOpeVOI form a group composed of individual citizens each responsible for the initiative he takes (cf infra 362f). I shall return to this problem below. (5) the boule is classified as an arche, side by side with the other boards of magis­ trates. This is a new point, which must be substantiated before we discuss the separation of powers itself. I. Classification of the Boule as an Arche In modern accounts of the political structure in democratic Athens it is assumed that there was a fairly sharp distinction be­ tween the boule and the archai, which are always treated sepa­ rately. Admittedly discussions of the boule regularly begin with the statement that the councillors were-strictly speaking-offi­ cers of state and subject to the same rules of appointment etc. as other archai. 7 But no one has drawn the conclusion from this concession and organized an account of the Athenian democracy into sections about the ecc/esia, the dicasteria, and the archai (in­ cluding the council of five hundred). First, however, we must es- 4 Cf, M. H. Hansen, "Nomos and Psephisma in Fourth-Century Athens," GRBS 19 (1978) 315-30, and "Did the Athenian Ecclesia Legislate after 40312 B.C.?" GRBS 20 (1979) 27-53, with further references. 5 Cf, M. H. Hansen, "Seven Hundred Archai in Classical Athens," GRBS 21 (1980) 167-69 (Appendix I: The Minimum Age for Archai). 6 For the meaning and use of this term the evidence is collected in the Appendix. 7 E.g. P. J. Rhodes, The Athenian Boule (Oxford 1972) 13f£. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 348 INITIATIVE AND DECISION tablish that the council both structurally and functionally was a board of magistrates, an arche in the technical sense of the word.s Of the relevant sources the most important are perhaps the Ath.Pol. and the Politics of Aristotle. The second part of the Con­ stitution of Athens is organized into three parts: a short section about citizen rights and the training of the epheboi (42); a long chapter about archai, elected or selected by lot (43-62); and a somewhat shorter chapter about the organization of the dicasteria and the selection of jurors (63-69).9 The chapter about magis­ trates is subdivided into four sections: first a very short section about elected archai in the civil service (43.1); then a long section about archai selected by lot (43.2-60); then, a short section about elected military archai (61); and finally a general chapter about allotment procedures and about payments to archai (62). In the section about archai selected by lot (43.2-60) the first and by far the longest part is about the council of five hundred, and the introduction of the boule in 43.2 (/JOVAr, be KA'IPOVTal Qj) is placed on the same footing as all the following entries: KA'IPOvVTal be Kai lepwv brl(JKeva(JTai, 6iKa dv6pec; (50.1), KA'IpovvTal 6e Kai dyopa­ V0f.10l I (51.1), etc. Apart from the basic structure of the treatise, several passages show that the boule was an arche. 10 Similarly, in the Politics the boule is invariably discussed in the sections about archai, and we hear repeatedly that the boule in a democracy is the most important of the archai. I quote the principal passages: 1299b30-32: OD f.1~V all a Kai r(}Iai rIver; (apxal1 eiuiv, olov ~ UOV 7tpopovl(J)v' aDf,! yap OD (}'!f.10KpaTlKr,. POVA.~ ()£ (}'!f.10TlKOV. 1317b30-31: uov ()' apxwv (}'!f.10TlKclnarov POVA.r" .•. 13 22b 12-17: 7tapa 7t(IU~ ()£ TaVf~ rar; apxar; ~ wiA.lUra Kvpia 7t(lvf(J)v euriv' ~ yap aDf~ 7tOA.AaKlr; exel fO fiAoc; Kai r~v eiu­ qJopav Ii 7tp01(a(),!ral wi) 7tAr,()OVr;, 07tOV KVpIOr; eUTlv 0 (}~f.10r;· &1 yap eiVal ro uvvayov fO KVPIOV r~r; 7tOAlTeiar;. KaAelTaI ()£ ev()a f.1eV 7tPOPOVAOI b,a fO 7tPOPOVA£V£IV, 07tOV be 7tA~()OC; eUTl, POVA~ f.1o.AAOV. 8 That the archai collectively were treated as one body of government is apparent from several laws and decrees-e.g. Teisamenos' decree which includes the following provision: bU/J.ddaOw " pov).;' " i~ :4peiov 1tcl)'OV rwv VOJl.Wv, IhwX; av ai dpXai rOlr; Ke,pivOlr; VOJl.Olr; xpwvral(Andoc. 1.84); and the law then quoted by Andocides (1.87): d)'pO.tpcp be VOJl.qJ r~ dpx~ Jl.;' xpijaOa, JD7bi 1tepi ivor;. For a definition of arche and an inventory of archai see Hansen (supra n.5) 155-62. 9 This is a correction of the view I stated in The Sovereignty of the People's Court in Athens in the Fourth Century B.c. (Odense 1974) 10. to 31.3: uov fl' a,Uwv apxwv nA;'v rij\: POVA.ij\: Kai rwv arparTJ),wv Jl.;' it;efval KrA. 47.1: avvfllO'Kel be (" pov).") Kai ralr; a),A.a,\: apxal\: ra n),elara (cf. 49.5). 62.1: Kai raura\: (ra\: apxu\:) tK ni\: ({)VA.ij\: oATJ\: KA.TJPOVa, nA."v povA.evrwv Kai ({)POVpwv. 62.3: apxe,v be r£il: Jl.ev Kara no),eIlOv apxar; l~eaTl nAwV(iKlr;, rwv fl' aA.A.wv oooelliav nA."v pov),evaa/ t5i\:. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 1323a6-9: rpuvv J' OVO'wv apxwv Ka{}' ar; alpovvrai river; dpxdc; rd~ Kvpiov~, Vo/-wrpvAaKwv npopovAWV povAij~, ol f..lBV v0f..l0- rpv).aKe~ aplO'roKpaTlKOV, OAl"'/apXIKov J' olnpopov).OI, po v)." Je J'lf..l0TlKOV. nepi f..lBV OVV rwv apxwv, dJ~ tv rvnqJ, O'xc:Jov efp'lral nepi naO'wv. 349 Aristotle's analysis both in the Ath.Pol. and in the Politics IS confirmed by the orators' usage in the forensic speeches. Aeschines refers to the boule as one of the K).r;pwrai dpXai (1.106, 109). De­ mosthenes mentions selection by lot of archai, such as the thesmo­ thetai or the boule (39.10), and the passage shows that the same bronze pinakion was used for the sortition of councillors and of other magistrates. 11 Socrates emphasizes that he never served on any board of archai, except the boule (PI. Ap. 32A-B). Further­ more, in several laws and decrees the boule, or a committee of the boule, is described as an arche. In the so-called charter of the democracy (IG P 105) we read in the fragmentary line 45: r ]o~ nevraKo(Jio~ npiv nave(JBat ri~ dpXi[~. The meaning is, probably, that the five hundred bouleutai before they resign their arche shall do something, we do no longer know what. 12 In other laws com­ mittees of the boule are described as archontes. In the recently discovered law about silver coinage (Hesperia 43 [1974] 157-88) 01' apXOVTeC; in lines 24-25 refers back to three boards of archai mentioned previously: the (Jlrorpv),aKe~ (19), the (JVAAoyel~ rou t5r,f.10V (20), and the e7rlf.1CA'Irai rou ef.1nopiov (21-22). Of these three boards of archai the second is in fact a committee of the boule, manned by thirty bouleutai: I G IF 1749.75 -79 (Agora XV 38.78-82). Similarly, in the law quoted in Dem. 24.54, the main provision is f.1it e/(JaYelV nepi rovrwv el~ ro t51Ka(Jrr,plOv f.1r;t5' e7rll.f/r;rpi(elV nov dpXDvrwv f.1r;t5iva. Now the only officials empow­ ered to put a proposal to the vote were the proedroi, who were bouleutai, and so rwv dpXDvrwv f.1'1t5ek; must be a comprehensive term for the proedroi (who put proposals to the vote) and the magistrates with ~yef.10via blKa(Jrr;piov (who bring a case before the court). All these sources point to a classification of the boule as a board of magistrates, an arche in the technical sense of the word. On the other hand, there are some passages where, presumably, a distinc­ tion is made between the boule and the archai. One source is Dem. 25.20 (quoted supra 346), others are: 11 cr. Hansen (supra n.S) 169. 12 Cr. H. T. Wade-Gery, "Studies in Attic Inscriptions of the Fifth Century B.C.," BSA 33 (1932-33) 117-22. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 350 INITIATIVE AND DECISION Thne. 5.47.9: o,uvvv't'{t)v t5i J4B"v'1U1 ,uiv " pov).," Kai allvt5'1,uOl apxai, el;,opKOIJVrWV t5e ol1Cpvravele;.13 Dem. 24.20 (law): ... e1ClXe1poroviav 1COleiV 't'{OV vo,uwv, 1CPWrov ,uiv 1Cepi rwv pOVA.eVtlKWV, t5evrepov t5i rwv K01VWV, efta of Kelvral rOle; evvea apxovUlv, efta rwv aA.A.WV apxwv. Lys. 25.14: ovt5eie; p'e a1Co&il;,el oiJre pov).,evuavra oure apx"v ovt5e,uiav lipl;,avra. 14 Xen. Vect. 6.1: iepeVUl t5e Kai pov).,6 Kai apxale; Kai t1C1CevUl rd 1Cdrpza a1Cot5chuop.ev. Arist. Ath.Pol. 24.3: ... POVA." t5i 1CeVtaKOalOl, Kai qJpovpoi vewpiwv 1CeVtaKOUlOl, Kai 1CpOe; roUrOle; ev r6 1COA.el qJpovpoi V, apxai t5' lvt5'1P.Ol p.iv de; e1CtaKOuiove; tivt5pae;, V1CepOplOl t5' de; i1CtaKOuiove; . This evidence indicates that the boule was an exceptional board of magistrates and might sometimes be set off against archai in general, but, in my opinion, there is no contradiction between these sources indicating a distinction between boule and archai and those adduced above to show that the boule was an arche. A parallel will illustrate: among all the citizens subject to atimia by far the most important group was the debtors to the state, ol oqJef}..ovrer; riP b,,/-IOUicp. They are usually described as a group of atimoi,15 but in some passages we meet an opposition between atimoi and opheilontes. Dem. 24.45 (law): ,u'1t5i 1Cepi rwv ari,uwv, 01CWe; XP" e1Clrip.ove; avrove; elval, ,u'1t5i 1Cepi 'l'WV oqJelA.OV'l'WV role; Beole; " up t5'1,uouicp up J4 B'1vaiwv . . . . Dem. 25.30: ei !Ie; ... ei1COl rOle; pza(O,utVOle; el;,eival A.eyelv " rOle; eK rov t5eu,uwr'1piov ... " role; OqJe{).,OVUl reP t5'1,uouicp, " rofe; KaBa1Cal;, ari,uou; . . . . _ Arist. Ath.Pol. 63.3: t5,Kd(f:lV t5' ll;,eu!lv roic; v1Cep )., lr'1 ye­ YOVOO'IV, 00'01 avrwv ,uiT OqJe{).,OVUlV reP t5'1p.oO'icp " atl,uoi dU1V. These sources show that the opheilontes formed a peculiar group of atimoi, but it would be a serious mistake to infer that the opheilontes were not atimoi. Similarly, it would be misleading to infer from the passages contrasting boule and archai that the boule was not an arche. 16 The conclusion seems to be that the Athenians 13 In IG IF 230.12-13 [r~v PlovA~v Kai r~ dpx [a\; 1 is probably a reference to the offi­ cials in Eretria and not in Athens (pace the restorations printed by Kirchner). 14 Same phrase in Lysias' For Eryximachus, P.Ry/. 489.112-13. IS Andoc. 1.73; Isae. 10.17; Dem. 21.99,22.34; 24.200-01, 26.1, 27.67, 43.58, 59.1, etc. 16 The law quoted in Dem. 24.20 establishes a tripartition into the boule, the nine archons, and the other archai, and so there is no real distinction between boule and archai. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 351 regarded the boule as a peculiar board of archai but nevertheless classified the boule as an arche. 17 And this conclusion is strength­ ened by an examination of the conditions for being a bouleutes. Like all other archai the bouleutai had to pass a dokimasia, to swear an oath, to wear a crown, and to submit to euthynai on expiration of their office. 18 Furthermore, the bouleutai had to be thirty years of age or more, like other archai. 19 The functional similarity between the boule and the other archai must be ad­ dressed next. II. The Separation of Initiative and Decision According to Aristotle's Politics one of the characteristics of a democracy, and especially of a radical democracy, is the funda­ mental distinction between the demos, who makes all important decisions, and the arch ai, who make no decisions except on rou­ tine matters but are empowered to prepare the decisions to be made by the people. The principal passage is in the chapters about the j.10pW 7:11C; 1COA17:eiac; (4.14-16), but Aristotle emphasizes the view in several other passages: 1298a28-32: rb:aproe; be rponoe; ro navrar; nepi navrwv pov­ Aevea(Juz aVVlovrar;, rae; c5' apxar; nepi /111(Jevor; Kpivelv aAAa /1ovov npoavaKpivelv, /Jvnep ~ reAevraia c511/10Kparia vvv c5IOIKeiral rpo­ nov. 1317b28-31: TO Tr)V eKKA11aiav Kvpiav eivuz 1laVTWV fi rmv jJ£­ yiaTwv apxr)v be /111c5e/1iav /111(JeVOe; fi OH oAlyiaTwv Kvpiav rmv c5' apxmv c511/10TlKdnaTOv ~ POVAtl· 1299b38-40: KaraAl5eral c5e Kai r~r; pOVA~r; 1j c5l5va/1lr; ev ralr; The passage from Xen. Veet. deals with misthos, and since, in the fourth century, the boule received misthos, whereas the other archai were probably amisthoi, the distinction made in this respect is necessary (cf M. H. Hansen, "Misthos for Magistrates in Classical Athens," SymbOslo 54 [1979] 5-22). The passage in Ath.Pol. carries little weight for the same reason: in the fifth century, both the boule and the archai received misthos, but probably at different rates. 17 The principal differences between the boule and the other archai can be summed up as follows: (1) The boule prepares the decisions to be made by the ecclesia and the nomothetai, the other archai prepare the decisions to be made by the dicasteria (cf. 356 infra). (2) Archai do not regularly act as hoi boulomenoi, but the bouleutai do in so far as all probouleumatic decrees are probably moved by councillors (cf. 363 infra). (3) The boule supervises the other boards of archai (Ath.Pol. 45.2). (4) The boule is a board of 500 meeting daily, and not a board of ten perhaps even practising some form of division of labour (cf. 367f infra). (5) The councillors are allowed to serve twice and they receive misthos, cf. Hansen (supra n.16) 19. 18Cf. Rhodes (supra n.7) 12-15, 194ff. 19 Cf. Hansen (supra n.5). HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 352 INITIATIVE AND DECISION rOlaVral~ d1lJlOKparial~ ev at~ arho~ UVVlc.OV 0 dt1JlO~ XP1IJlarfCel 1Cepi 1CaVr£OV. 1292a28-30: en de of raf~ dpxaf~ eYKaA.o6vre~ rov dt1JlDV 'PaUl &fv KpivelV, 0 de duJdv£O~ dexeral rJ7v 1CPOKA.1IUlv· wure Kara­ Avovral 1CaUal af dpxai. Aristotle's description of democratic archai as preparatory boards with no power to make decisions is a generalization about democracy in all Greek poleis, and in the age of Aristotle there were several hundred democracies in Greece. 20 Accordingly the first question to ask is whether Aristotle's general statement in the Politics about the separation of powers in democracies applies to fourth-century Athens. In my opinion it is valid for the Athenian democracy if we make two modifications concerning the bodies of government involved, one about the decision-making body and one about the archai who prepare the decisions. In fourth-century Athens the right to make important decisions was no longer reserved for the demos in the ecclesia. In 403/2 the ecclesia was deprived of the right to pass nomoi and all legislation in the proper sense of the word was transferred to the nomothetai (supra 347 with n.4). Similarly, in the 350s the ecclesia was de­ prived of the right to act as a law-court, and judicial authority, even in political cases, was transferred to the dicasteria. 21 So the right to make decisions on important issues was divided between three separate bodies of government: (1) the ecclesia passing psephismata, (2) the nomothetai passing nomoi, and (3) the di­ casteria pronouncing kriseis. Second, the council of five hundred was admittedly an arche, but a peculiar arche, and it is in confor­ mity with the sources (supra 348) to subdivide the archai into the boule and the other archai. So we have three agencies making decisions (ecclesia, nomothetai, and dicasteria) whereas the initia­ tives are taken by some 1200 archai, bisected into the council of five hundred and about 700 other archai, usually organized into boards of ten.22 Accepting these two modifications, we can apply Aristotle's analysis to Athens and make the following statements about the separation of powers: (1) a decision-making body is not empow- 20 On the number of poleis in Greece cr. E. Ruschenbusch, Untersuchungen zu Staat und Politik in Griechenland vom 7. - 4. Jh. v. Chr. (Bamberg 1978) 3-17. In the fourth century most of the poleis were democracies, cf. Arist. Pol. 1286b20-22, 1291b7-13, 1296a22- 23, 1301b39-40. 21 M. H. Hansen, "How Often Did the Ecclesia Meet?" GRBS 18 (1977) 68-69 with further references. 22 For the number of archai cr. Hansen (supra n.5). HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 353 ered to take any initiative; (2) the archai, taking initiatives, are not empowered to make any important decision. The validity of these two statements can be tested by a brief survey of the powers of the various bodies of government. (1) The demos cannot assemble spontaneously. The ecclesia has to be summoned by the prytaneis (Arist. Ath.Pol. 43.3) and presided over by the proedroi (44.2-3). The agenda are drawn up by the prytaneis (43.3) and no decision can be made without a previous discussion in the boule (45.4). But the ecclesia has to discuss and to vote on all important issues within its competence. (2) The nomothetai are summoned by the prytaneis (Dem. 24.27) and presided over by a board of proedroi, the composition of which is unknown.23 Probably all bills are brought before the nomothetai through the boule (Dem. 24.47-48). The nomothetai have one duty only, viz. to vote. (3) The dicasteria are convened by the thesmothetai (Ath.Pol. 59.1). The selection of jurors is supervised by the archons (63.1). The court is presided over by the board of archai which is compe­ tent in the case (Aeschin. 3.14, 29-30). The dicastai have one duty only, viz. to vote. (4) The boule is empowered to pass psephismata in routine mat­ ters only24 and to impose minor fines of up to 500 drachmas.25 The great majority of the decisions made by the boule take the form of probouleumata, provisional decrees to be voted on by the 23 Cf M. H. Hansen, "Athenian Nomothesia in the Fourth Century B.C. and Demos­ thenes' Speech against Leptines," CIMed 32 (1980) 103 with n.17. 24 Decrees of the boule preserved on stone are listed by Rhodes (supra n.7) 271-72. C{. further IG IP1623.210-12, 1629.272, 1014-15, 1672.302. Decrees preserved in liter­ ary sources are: Hell.Oxy. 6.1; Dem. 47.33, 36; Aeschin. 3.66-67; Dem. 19.129-30 c{. 124; Dem. 19.154; Dem. 18.28; Aeschin. 2.17; 2.55,110; 3.76; Ath. 17IE. A few impor­ tant decisions of the 390s (394/3) are believed by some scholars to be decrees of the boule passed without reference to the demos, cf. e.g. W. R. Connor, "The Athenian Council. Metthod and Focus in Some Recent Scholarship," Cl 70 (1974) 37-38. The decrees in question are IG IP 16 (alliance with Eretria), 17 (honorary decree for Sthorys of Thasos), 18 (honorary decree for Dionysius of Syracuse), Hell.Oxy. 6.1 (decree about Demaenetus). But the date of IG IP 16 is not certain and the alliance has recently been dated 404/3 by P. Krentz, AJP 100 (1979) 398-400; the traditional date, however, is maintained by D. Knoepfier, AlP 101 (1980) 462-69. Next, I follow Rhodes (82-85) in believing that IG IP 17 may be a republication of a decree of the people and that 18 probably is a decree of the people with an unusual formula. Finally, in Hell.Oxy. 6.1 we are told that the boule was overstepping its powers and had its decision overruled by the demos. We know that the ecclesia might delegate some of its powers to the boule (cf. IG IP 127.34-35,204.85-86, 435.7-9, 1629.264-69; SEG XIV 47B.3); but usually the powers delegated to the boule were confined to making minor additions to the decrees passed in the ecclesia by the demos. C{. Rhodes 82. For an exceptional situation cf. Dem. 19.154 and Hansen (supra n.21) 44-45. 25IG P 105.32 (?); Dem. 47.43; Hesperia 43 (1974) 158.36 (as restored by Stroud). HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 354 INITIATIVE AND DECISION demos in the ecclesia.26 Similarly, the boule has to refer to the nomothetai the bills drawn up and handed in by individual citi­ zens.27 Finally, in elaayyeAiUl elc; r~v POVAr,V, the council passes only a preliminary verdict (KaruyvwalC;), leaving the principal hearing of the case to the dicasteria. 28 (5) The other archai-perhaps some seven hundred-have no powers to pronounce a judgement except in minor cases in which the matter at issue is less than ten drachmas. 29 Similarly, the archai are empowered to impose only minor fines without reference to the dicasteria.30 But the archai prepare the trials (uvuKplall;), bring the cases before the jurors (elauyelv elc; ro l5IKaarr,plOv), and preside over the court (f/yef.1,ovia l5,Kaarl1pfov). 31 This, I believe, describes the essential powers of the fourth-cen­ tury Athenian bodies of government. It is, of course, a simplifica­ tion, since Athenian democracy, like all other political systems, permitted of exceptions to the rules. In some cases a board of magistrates was empowered to make an important decision with­ out reference to a decision-making body, viz. the dicasterion, and conversely a decision-making body, viz. the ecclesia, was some­ times empowered to take an initiative. These are the principal exceptions: (1) Occasionally a board of magistrates was empowered to inflict capital punishment on a criminal without referring the case to a dicasterion. The two most important instances of this exception to the principle f.1,l1l5iva a.Kpzrov unoKrefval are the power of the boule32 and of 0" lvl5eKa33 to order instant execution without trial. In both cases capital punishment was probably applied only to criminals who could be classified as outlaws (nOAef.1,IOI) or exiles (qJevyovrec;) or 'malefactors' (KaKovpyOl) in the technical sense. (2) In some procedures the initiative was a result of a collabora- 26 Cf. Rhodes (supra n.7) 52-8l. 27 Dem. 24.47-48. C(. M. H. Hansen, "ol1lpoe,jpOl rwv vopo()erwv. A Note on IG IF 222.41-53," ZPE 30 (1978) 155-57, where I argue that the council's role in the nomo­ thesia procedure was restricted to the preparation of the bills. I do not agree with Mac­ Dowell's suggestion in IHS 95 (1975) 69 that Epicrates in his decree (Dem. 24.27) pre­ scribes that Timocrates' law was to be passed by 1001 nomothetai and the boule. 28 Arist. Ath.Pol. 45.2, 46.2, 59.4; Dem. 24.63; cf. M. H. Hansen, Eisangelia (Odense 1975) 22-23. 29 Arist. Ath.Pol. 52.3 (01 a1tOObCTal), 53.2 (01 rerraptz,wvra); Hesperia 43 (1974) 158.23-25 (01 O'lTo"r5A.a1,e~, 01 O'vUo)'ei'~ rou OrTpov, 01 e1tlpen,rai rou ep1top(ov). 30 Cf. A. R. W. Harrison, The Law of Athens II (Oxford 1971) 4 with n.l. 31 C(. J. H. Lipsius, Das attische Recht und Rechtsverfahren I-III (Leipzig 1905-15) 54-56. 32 Cf. M. H. Hansen, Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes (Odense 1976) 30-35, esp. 34-35. 33 Cf. Hansen (supra n.32) 17 (with n.3), 18, 114, 119. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 355 tion between the ecclesia and a board of arch ai, and in other procedures the initiative was even reserved for the ecclesia. (a) The ecclesia was empowered to instruct the prytaneis to call a special meeting of the assembly, an 8KKA'1aia G15YKA'1ro~, 34 or instruct the boule to place some matter on the agenda for the next meeting of the assembly (IG IP 125.6-9, 193.4-8. 360.46-50). (b) The ecclesia had the exclusive right to decree that the nomothetai be convened; the prytaneis were not empowered to summon the nomo­ thetai without a decree passed by the people.35 (c) The ecclesia had the exclusive right to reject or accept an elaayyeAia el~ !oV Jij/lov. In case of acceptance, the eisangelia was invariably (after ca 355) referred to a dicasterion and heard by the jurors (Dem. 8.28-29; Philoch. FGrHist 328F149; Dem. 19.277-79; Aeschin. 3.224; cf supra n.21). (d) The ecclesia was empowered to suspend an arche for misconduct in office; the case was referred to the dicasteria and heard by the jurors.36 If we allow for these exceptions, the bodies of government in fourth-century Athens were bisected into archai (which according to Aristotle were KUPzaZ f.117()eV()(; if oAlyia!wv) and KUPIOZ (who made all important decisions when summoned and presided over by the archai).37 KVplOl BKKAl1aia 38 vOf.1° ()iraz 39 t51Kaar'fjpza 40 34 Aeschin. 2.61. cr. Hansen (supra n.21) 48, 55, and "eKKAr,aia aVYKArrrOr; in Hellenistic Athens," GRBS 20 (1979) 151. 35 Dem. 24.26-27, cr. 21; Aeschin. 3.39; Dem. 3.10, 18.102-07 (on which see Hansen, "Nomos" [supra n.4]327-29). 36 Arist. Ath.Pol. 43.4, 61.2. Cr. Hansen (supra n.28) 41-44. 37 It is important to note that kyrios is used in two related but different senses: (a) 'sov­ ereign' or 'decision-making' and (b) 'competent' or 'entitled to'. In the Politics (1317b29- 30, quoted supra 351) Aristotle states that the archai, in a democracy, are never or hardly ever kyrioi. On the other hand, we read in Ath.Pol. 59.1 that the thesmothetai are kyrioi to summon the dicasteria. There is, however, no contradiction if we realize that kyrios is used in sense (b) in the second passage but in sense (a) in the first. Similarly, when Aristotle in the Politics asks the question, 'who is kyrios in this type of constitution?', he uses kyrios in sense (a). It is of course only in sense (a) that there is, in democracies, an opposition between kyrioi and archai. 38 Kyrios is applied to the people in assembly in e.g. Dem. 13.31, 20.107, 59.4; Xen. Hell. 1.7.12; IG IP 140.10-12. 39 There is no passage where the adjective kyrios is explicitly applied to the nomothetai, but cr. Dem. 20.93 (rour; w5flOUr; ... rzOtval ... nap' VflIV, ev rOlr; OJl(J}floKoazv, nap' otanep Kai raAAa KUPOVTaI) and the nomos quoted in Dem. 24.33 (rwv Je VOfl.WV rwv KelfJivwv fl." e~elvaz Avaaz Wl(jtva, eav fl~ ev vOfloOtrazr;). Cr. furthermore the enactment formula in the preserved nomoi: beooxfJalllJoc;e roic;; VOfl.ofJtralr;. 40 For a list of passages where the dikastai are called KVPIOZ (ndvrwv) cf Hansen (supra n.9) 17-18,47-48. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 356 INITIATIVE AND DECISION apxai { /lOUA" at (lAAal apxai Concerning the relationship between the two bodies of archai and the three bodies of kyrioi, we can make the following two observations: (1) The boule and its committees-the prytaneis, the proedroi, etc.-had the sole and exclusive right to summon and preside over the ecclesia and to summon the nomothetai, whereas there seems only a single example of a committee of the boule presiding over a dicasterion: in the law about silver coinage the aUAAoyei~ rou l5"f.10U are entrusted with ~yef.10via l5lKaar11piou in phaseis brought for offences committed in the agora or elsewhere in the city, except for offences committed in the grain-market (Hesperia 43 [1974] 158.18-26). To the best of my knowledge, this provision is un­ paralleled and, if we take into account how many sources we have for procedure in public actions, there can be little doubt that the provision is exceptional. Even in eiaaYYeAial ei~ r~v /lOUA"v the right to summon the dicasterion and to preside over the jurors rested with the thesmothetai or the Eleven, but never with the boule (Dem. 24.63, Pluto Mor. 833F); and similarly in euthynai, the euthynoi never preside over a dicasterion, but pass on the cases they accept either to the Forty (private actions) or to the thesmo­ thetai (public actions) (Arist. Ath.Pol. 48.3-4). (2) Conversely, the other magistrates, who had ~yef.10via l5IKaar11- piou, had no right to summon and to preside over the ecclesia or the nomothetai. Admittedly, the strategoi may have been empow­ ered to have an ecclesia summoned, but if so, the procedure was that the strategoi applied to the boule and asked it to summon the ecclesia.41 Similarly, the thesmothetai might demand that a revi­ sion of the law-code be referred to the nomothetai, but again the thesmothetai had to apply to the boule and to leave the summon­ ing of the nomothetai to the prytaneis (Aeschin. 3.38-40). 41 For the prerogative of the strategoi to convene an assembly see Thuc. 2.59.3 and Pluto Phoc. 15.1. For the boule and the prytaneis as intermediaries between the strategoi and the ecclesia see Thuc. 4.118.14; IC IP 897, 911, 954; SEC XXI 440, XXIV 134; restored at IC P 98.20 (not at P 93). We have two fifth-century decrees moved by the board of strategoi,IC P 89.55 and 92.5. For ecclesiai convened by orders of the boule (and not by the prytaneis on their own initiative) see Hell.Oxy. 6.2; Xen. Hell. 6.5.33; Hesperia 7 (1938) 476-79 no. 31. The Hellenistic decrees are discussed in Hansen (supra n.34) 151- 52, and a survey of the powers of the strategoi vis-a.-vis the ecclesia can be found in Rhodes (supra n.7) 44-46. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 357 To sum up, the boule acted as originator when a decision had to be made by the ecclesia or by the nomothetai, whereas the other archai had the exclusive right to be originators towards the dicas­ teria. This statement can be illustrated by a figure: INITIATIVE: DECISION: al a,U.az apxai .IKat~Pla III. The Combination of Initiative and Implementation Apart from the right to summon and to preside over the kyrioi, who made the decisions, the archai had another important func­ tion, viz. the administration of those decisions. In his chapter about archai in Politics 6.8 Aristotle distinguishes (1322b12-17, quoted supra 348) between eiarpopa (initiative) and reAOC; (imple­ mentation). Earlier in the same chapter he emphasizes that judicial decisions have no effect if there are no archai to enforce them: ov£5iv OrpcAOe; yivcaOw /-liv £5iKae; ncpi rwv £5'Kaiwv, ravrae; £5i /-lit Aa/-lpaVclV riAoe; (1322a5-6). Accordingly, Aristotle states in the other central chapter about archai (4.15) that the essential duty of an arche is to issue orders: /-laAurr:a b' we; dnAWe; eineiv dpxae; AeKriov ravrae; D(JWe; ano£5i£5oral povAev(Ja(JOai re nepi rlVWV Kai Kpfvw Kai 8mui~w, Kai /-laAlara rovro' ro yap 8mrarrclv aPX1Kw­ rcpoveaTlv (1299a25-28).42 Again, Aristotle's general analysis of the powers and duties of the archai is confirmed by an inspection of the Athenian sources. In nomoi and psephismata preserved on stone or quoted in the forensic speeches, many of the provisions are instructions to the archai that the decisions be carried into effect, and in all public actions the archai are responsible for the execution of the judge­ ment. Exempli gratia I adduce three examples-a nomos, a pse­ phisma, and a krisis. 42 Cf. also Xen. Mem. 3.9.11 and the ephebic oath (Tod II 204), which included a promise to obey the authorities. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 358 INITIATIVE AND DECISION (1) In the nomos about silver coinage (Hesperia 43 [1974] 157- 59) the main provision is that two dokimastai, one in Athens and one in the Peiraeus, shall examine all the silver coins submitted to them, in order to enforce the acceptance of genuine Athenian silver coins. The law includes an injunction to the tradesmen to accept the decision made by the dokimastes, but most of the law consists of detailed instructions to the archai about the carrying into effect of the main provision. No less than seven different boards of archai are mentioned in the law.43 (2) In 325/4 the ecclesia passed a decree about the foundation of a naval station in the Adriatic. In consequence of this colonization decree the ecclesia passed a decree about the despatch of a squad­ ron. This decree is preserved (IG IP 1629.165-271), and it con­ sists of instructions to the archai and to the trierarchs. (3) If a krisis pronounced by a dicasterion entailed the confisca­ tion of property, the carrying into effect of the confiscation rested with the Eleven and the poletai. In the accounts of the poletai for the year 367/6 we hear inter alia that a certain Theosebes had been convicted of hierosylia, and that his property had been con­ fiscated by the Eleven and sold at an auction arranged by the poletai (Hesperia 10 [1941] 15-27 no. 1.1-39). In order to enforce all the decisions made by the nomothetai, the ecclesia, and the dicasteria, the archai were invested with spe­ cial authority. The outward sign of the authority was a crown worn by all archai on duty, and the authority was guaranteed by special protection and special powers. Assault and battery was punished more severely if the victim was an arche on duty.44 If any person refused to comply with an order issued by an arche, the magistrate in question was empowered to inflict a fine of up to fifty drachmas, and the boule was even empowered to inflict fines of up to 500.45 Summing up, the dual function of the archai in relation to the kyrioi can be illustrated in this figure: 43'; POVA.1j: 13, 34, 36, 39, 49 (ypajJjJaTe~ T1i~ POVA.1i~: 47-48, 56). 0; TaU ~1jfJ,OV O'VA.­ A.oyef~: 15, 20. 0; O'lToIPVA.aKe~: 19, 23.0; bUfJ,8A.r,m; rou efJ,1cop{oV: 21-22.0; 8eO'fJ,0(Jtraz: 26.01 a1CoobCTal: 40,52.01 1COA.r,ra{: 48-49. 44 Oem. 21.32: the penalty for having insulted or assaulted an arche on duty was total and permanent at;mia, and the offender was to be prosecuted by a special type of public action, whereas the same offence was actionable by a ~iK" KaKt/yopia~ or a ypalP1J vppew~ if committed against an ordinary citizen. 45 See supra nn.25 and 30. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 MOGENS HERMAN HANSEN 359 INITIATIVE DECISION IMPLEMENTATION [JOVAr{ -----( eKKArwiu " } I [JOVAr{ vO/lOOirUI 1 >--. ui d'AAaz dpxui uidAAUldpxui ------ blKuarrjpza I A simplified model is: dpxai~KrfplOl~dpxai. The powers of the archai consist in initiative and implementation, but the archai, including the boule, never make any important decision. IV. The Relationship between al dpXai and ol fJovAOJleVOl It remains to deal with the function of ol fJovAO/leVOI (see 347 supra) and to give a more precise description of what initiative consists in. The archai had the exclusive right to prepare the deci­ sions, to convene the decision-making bodies, and to preside over them. But who devised and proposed the decisions to be made? Regularly, the initiative, here meaning the very first step in the procedure, was taken neither by the kyrioi, nor by the archai, but by ordinary citizens who had no specific authority and served as originators on their own responsibility. When acting in this ca­ pacity, an Athenian citizen is called :40'!vaiwv 6 fJovAO/leVOe; oie; §~eaTlv. This phrase, either in its full form or abbreviated.46 oc- 46 :4.0"vaiwv 0 povA,ojJ,evor; ofc; leeauv: Hesperia 43 (1974) 158.34; 49 (1980) 263.25; Dem. 24.63; 59.16; Aeschin. 1.32. ;4.0"vaiwv 0 POVA,OIJ£Vor;: IG IF 204.22,40-41; 244.41; 337.22-23; 365.19; Hesperia 49 (1980) 263.28; 264.41; Lys. fro 233.2; Dem. 24.23, 33; 59.90; Aeschin. 1.23; Arist. Ath.Poi. 39.1. 0 POVA,OIJ£VOr; orr; leeaTlv: Dem. 24.105. 0 POVAOIJ£VOr;: IG P 14.8; 41.61; 64.6; 84.26; 133.11; Andoc. 1.23,26,83-84; Lys. 25.14; Dem. 13.11; 18.138; 19.117; 21.45; 23.28; 24.18, 25,105; 43.54; Prooem. 10.1, 17.1; Aeschin. 2.65; 3.220; Hyp. 2 fro 3; fro 24; Lycurg. 1.121; Ath.Pol. 9.1; 29.2; 43.4, 6. orr; leeaTlv: Dem. 59.52; Ath.Poi. 63.3. TroV 7tOA,lTrov a POvU)lJ£vor;: Ps.-Xen. Ath.Poi. 1.2; Isoc. 20.2; Dem. 58.14; Aeschin. 3.2, 23; Hyp. 3.11. i6IW'7lr;: Andoc. 1.84; Dem. 43.71. HANSEN, MOGENS HERMAN, Initiative and Decision: The Separation of Powers in Fourth-Century Athens , Greek, Roman and Byzantine Studies, 22:4 (1981:Winter) p.345 360 INITIATIVE AND DECISION curs in numerous nomoi47 and psephismata.48 It denotes any Athe­ nian adult male citizen who is epitimos.49 Like £5 ~ijf.1,Oe; and t1 pov).~ it is used as a constitutional technical term, referring to 'the active citizen', and the sources justify, in my opinion, the inclusion in the figure on page 346 of of pov).Of.1,eVOI side by side with £5 ~ijf.1,Oe; and of Of.1,Wf.1,OKOree; which denote regular bodies of government. £5 pOVAOf.1,eVOe; is frequently regarded as the protagonist in Athe­ nian democracy, and Aeschines, for example, emphasizes that one of the principal differences between an oligarchy and a democracy is that, in a democracy, it is ho boulomenos who addresses the people whereas the right to speak, in an oligarchy, is restricted to those in power. 50 What Aeschines has in mind is the official invita­ tion in the ecclesia to address the people: the formula used by the keryx was rie; ayopevelv pov).eraz; Sl In this formula, pov)..eaOal is not an auxiliary with no meaning of its own. Comparison with :4011vaiwv £5 pOVAOf.1,eVOe; oie; ei;earlV indicates that the verb has a precise meaning, viz. to take it upon oneself to be promoter. In support of this interpretation is the witty dialogue in Aristophanes' Plutus between an honest man and a sycophant. The honest man asks the sycophant who he is and the sycophant states that he is in charge of all public and private affairs. ri f.1,aOwv; asks the honest man. pov).Of.1,al is the laconic reply; and a few lines later the syco­ phant forces the honest man to admit the importance of ho boulo­ menos for the administration of justice: L11.: OVKOVV ~IKaarae; ei;enirl1~ee; t1nOA1e; apxe1v KaOiarl1alv; LV.: Karl1yopei ~e rie;; L11.: £5 pov).of.1,evoe;. LV.: OVKOVV eKeivoe; df.1,' eyw, war' de; ef.1,' ijKel rije; nOA.eWe; ra npaYf.1,ara (907-19), Ho boulomenos is the dominating promoter in relation to the jurors (o{ Of.1,OJf.1,OKOree;) acting as ~IKaarai or as vOf.1,OOtral, whereas, in the ecclesia, ho boulomenos has to share the initiative with the boule. The relationship between ho boulomenos and the three deci­ sion-making bodies of government may be summarized as follows: 47IG III 244.41; Hesperia 43 (1974) 158.34; 49 (1980) 263.25, 28; 264.41; Dem. 23.28; 24.23, 33, 63, 105; 43.54, 71; 59.16, 52; Hyp. fro 24. 48IG J3 14.8; 41.61; 64.6; 84.26; 133.11; IG IF 204.22,40-41; 337.22-23; 365.19; Andoc. 1.83-84; Arist. Ath.Pol. 29.2. 49 :4.fhtvaiwv or nov 7tOAlrWV indicates that 0 POVA.OJ1£vo<; has to be a citizen, and ofr; l