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Imprisonment in Classical Athens*
I. IMPRISONMENT AS A PENALTY?
Published online by Cambridge University Press: 11 February 2009
Extract
Nineteenth–century scholars assumed that the Athenians as a community punished citizens with death, exile, atimia, and fines and used imprisonment only to hold those awaiting trial, those awaiting execution, and those unable to pay fines.1 As they saw it, brief imprisonment in the stocks occasionally supplemented these penalties, but always as additional penalty–never as a penalty on its own. Barkan saw in the use of imprisonment as an additional penalty the likelihood of general penal imprisonment and used evidence from the oratorical corpus to make an argument therefore.2 His argument seems to have been largely ignored–the nineteenth–century interpretation continuing dominant; and the issue, largely unexplored but for a few glancing references in recent scholarship.3 The issue remains, thus, sufficiently vexed to make worthwhile a restatement of the argument for the use of punitive imprisonment. Also, the evidence provides clues worth setting forth as to why and when punitive imprisonment developed. Indeed, these are sufficient to make an argument about the relevance of the development to Athenian political history. For the introduction of penal imprisonment in Athens proves an extremely important historical moment, marking as it does both the completion of a general will institutionalized (in a punishment of consumption of the wrong–doer within, rather than of expulsion from, the community) and a significant point in the establishment of isonomia.
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Footnotes
*
The following are works cited frequently and are referred to hereafter by the author's name, and the date of publication: Barkan, I. (1935). Capital Punishment in Ancient Athens. New York: i Arno Press; Barkan (1936) ‘Imprisonment as a Penalty in Ancient Athens’, CP 31: 338–141; I Bonner, R. J. and Smith, G. (1930, 1938). The Administration of Justice from Homer to Aristotle, i vols 1 and 2. Chicago: University of Chicago Press; Cohen, D. (1983). Theft in Athenian Law. München: C. H. Beckische Verlag; Harrison, A. R. W. (1968, 1971). The Law of Athens, vols 1 and 2. Oxford: Clarendon Press; Hunter, V. (1994). Policing Athens. Princeton: Princeton University Press; Ober, J. (1989). Mass and Elite. Princeton: Princeton University Press; Todd, S. (1993). The Shape of Athenian Law. Oxford: Oxford University Press; Vanderpool, E. (June, 1976). ‘The Prison of Socrates’, Illustrated London News 21 A: 87–8.
References
1 Thalheim, in Pauly–Wissowa, R. Dareste [de la Chavanne], La science du droit en Grece (New York, 1976; reprint of 1839), p. 85; Gilbert, G., The Constitutional Antiquities of Sparta and Athens (London, 1968; reprint of 1895), p. 414.Google Scholar
2 Barkan 1935,1936.
3 Harrison 1971: 177. In his appendix, Harrison accepts the use of imprisonment as a penalty. Todd (1993: 141) thinks the use of penal imprisonment unlikely. Nonetheless, he writes: 'Dem.; 25.60–2 implies that on occasion the prison could be moderately full, and it seems unlikely that all these prisoners were simultaneously on remand'. Hunter (1994) leaves the question at issue, although she seems to lean toward accepting the use of imprisonment as a penalty.
4 The dating of the play is debatable. I claim only that the story was relevant in fifth–century Athens.
5 A. Keramopollous (Athens, 1923), argues that the play represents execution by aTTOTvpnaviofios– L. Gernet ('Capital Punishment', in J. Hamilton and Blaise Nagy [trans.], The Anthropology of Ancient Greece. Baltimore, 1981, from 1968 original, pp. 252–71) takes issue with this interpretation. As I argue elsewhere ('A Situation of Punishment: the Politics and Ideology of Athenian Punishment'; dissertation, June 1996), the anoTvn7raviap,6s was probably used both as means of execution and as stocks for public shaming. Thus each scholar may be partly right.
6 E.g. Thuc. 4.38,41; 5.18; 7.87. Also, Soph. Ant. 775; Aesch. Agam. 820, 1639–42.
7 Translation from Gagarin, M. and Woodruff, P., (edd., trans.) Early Greek Political Thought from Homer to the Sophists (Cambridge, 1995).CrossRefGoogle Scholar
8 Whether his house became his prison or his house became a prison is unclear in the Greek.
9 Harrison 1971:177; Barkan 1936: 338–41; Todd (1993:140) points out that Socrates does this in a piece of fiction.
10 Todd (1993: 140) points out that this is a contingent penalty rather than one proposed in Tifirjois and resulting from trial. What matters, however, is simply that imprisonment, as opposed to, say, atitnia, was proposed as a penalty.
11 D. MacDowell (Andokides: On the Mysteries. Oxford, 1962: appendix D) considers this passage (and its implication, in what follows on, of a lengthy stay in prison for Andocides) in comparison with Andocides' own claim (1.64) that he was only in prison for a day as a result of this matter. MacDowell comes to the conclusion that the stories (Lys. [6]. 21–4, Plut. Alk. 21.4–6) of the friendships that Andocides makes in prison and the denunciations that he makes in order to get out of prison justify accepting that Andocides did have a lengthy stay in prison and lied in his own speech.
12 E.g. Kardyvovres TOX Odvarov in Ant. 5.47; And. 1.79; Lye. 1.93; Din. 2.8; 3.21; Hyp. 2.8.
13 See, e.g., And. [4].3–5,27; 2.16; Dem. 24.12.
14 M.H. Hansen, The Athenian Democracy in the Age of Demosthenes (Oxford, 1991), p. 202.
15 Harrison (1971: 63–4): 'In agones timetoi the jury, if it convicted, had to choose between the penalty proposed by the defendant and by the prosecutor; but in certain passages in Against Meidias, Demosthenes suggests the possibility of more than two options. We need not make too much of the phrase 'whatever penalty you think just' (Dem. 21.21); but later he speaks of death or confiscation of property, which implies at least three possible penalties, since Meidias' proposal must have been less than either of these.'
16 Harrison 1971:4.N6
17 As catalogued in Harrison (1971: 81–2), suits that were in that the magistrate had suggested a penalty included
18 Dem. 43.75
19 See Dem. 21.44 for an example of a situation in which the additional penalty is monetary.
20 Strachan–Davidson, J. L., Problems of the Roman Criminal Law (Amsterdam, 1969), p. 165; P. Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford, 1970), pp. 103, 147–54; A. H. J. Greenidge, The Legal Procedure of Cicero's Time (Oxford, 1901), p. 514.CrossRefGoogle Scholar
21 Nomographus frag. 4.24–6; See also Hyp. 3(5).8.4–8; Plut. Sol. 21.4–5.
22 Buck, C. D. and Petersen, W., A Reverse Index of Greek Nouns and Adjectives: Arranged by Terminations with Brief Historical Introductions (Chicago, 1944). See esp. pp. 43–47. Aeio is common already in Homer and used with reference, for instance, to the binding of horses, wounds, people, and ships. The –rrjpiov ending appears only once in Homer and once in Hesiod, becoming frequent, however, in the fifth and fourth centuries.Google Scholar
23 Harrison 1971: 177,244; Bonner and Smith 1938: 275.
24 Bonner and Smith 1938: 275.
25 For a careful analysis of this passage and previous interpretations of this passage, see Cohen 1983:40–4, 63ff.
26 Dem. 24.105; also Lys. 10.15–16.1 am not taking these passages as exhaustive of the issue of theft but merely use them as an example of penal organisation. For a thorough treatment of the issue of theft see Cohen 1983.
27 See Cohen (1983:44–9) for the possibilities of such, mostly having to do with theft of public property; and see also for the confusing set of references to both fines and penalties of death in relation to theft.
28 I. Barkan (1936: 339) agrees; mentions of lengthy terms in prison are found at Dem. 24.125, 135; 25.61, Din. 2.2.
29 Dem. 25.61; Soph. Ant. 775: Creon leaves Antigone only enough food to live for a short while; Thuc. 7.87: the prisoners of the Syracusans do not have enough food to fend off hunger; Aesch. Agam. 820,1639–42: here it is implied that hunger and bondage are associated.
30 Harrison 1971:150.
31 Hunter (1994: 174–6) makes a convincing argument for the rarity of torture of citizens.
32 See Ober 1989, for instance.
33 I use the term wealth elite here, rather than wealthy elite to acknowledge that different sorts of elites may be defined by the characteristic of which the members of the elite are the few possessors, i.e. an intellectual elite or a noble birth elite. See Ober 1989: 11–17.
34 Ehrenberg, V., From Solon to Socrates (New York, 1968), p. 212.Google Scholar
35 i 35 E. Vanderpool 1976. I do not accept the argument that this building, called the Poros building in the publications of the American School of Classical Studies Agora excavations, was necessarily 'the prison of Socrates' nor the argument that it had to be 'the prison in Athens'. I accept the argument that this building is of such structure and stone as mark it as a public building and that, of public buildings, it is unique in ways that would befit a prison. The argument for the use of imprisonment as a penalty in no way stands or falls on the status of the building. I use the status of the building as a prison only to attempt a more specific chronology of the changes in the penal system.
36 Interestingly, the Prometheus Bound, a play that explores the concept of imprisonment as a penalty, was roughly contemporaneous to the construction of the prison, and writers in later centuries associated the story of Prometheus with the hfOfiwrqpiov. S. Radt, Tragicorum Graecorum Fragmenta, vol. 3 (Gottingen, 1985), Aesch. fr. 202a, concerning Prometheus Luomenos. The fragment derives from Philodem. De piet. pap. Hercul. 1088 III 18. In fr. 204a, from Prometheus Purkaeus, appears the word fragment –rjpiov, which is usually restored as heoiuaT–qpiov. If the restoration is correct, this is the first instance of the word in our extant sources
37 Todd (1993: 140) suggests that, concerning penalties, 'these [oratorical] sources may be unrepresentative, because they tend to concentrate disproportionately on high crimes and misdemeanours.'
38 The jury's power to impose imprisonment as a penalty was acquired in the first half of the fourth century, at least before Demosthenes' speeches Against Timocrates (353) and Against Meidias (348–6).
39 As catalogued in Harrison (1971: 82), suits that were drip– included:
40 According to Vanderpool (1976:87), the Poros building tentatively identified as a prison was remodelled at the end of the fifth or beginning of the fourth century and again at the end of the fourth century.
41 Here we need notice again the explicit distinction between imprisonment for debt and imprisonment as penalty per se.
42 This quotation is inserted into the text of the speech as the law of Timocrates. I use the quotation because what follows after in Demosthenes' own text, at 46 and 55, refers to this law and quotes it in such a way as to confirm the text quoted here.
43 Bonner and Smith 1938: 284.
44 Even the death penalty so depended, insofar as an escaped convict had to fear being seen (and recognized by fellow citizens) in locales from which he was forbidden. This would drive him into exile, the result of 'escape' from the death penalty.
45 MacDowell, D., The Law in Classical Athens (Ithaca, 1978), p. 254; Soph. frag. 780, Ant. 1.20, Isoc. 17.15.Google Scholar
46 Dem. 24.165; Lys. 12.17; 13.54, 56, 66. Lys. 13.45: 'You remember those led to prison then because of private enmities. and forced to perish by the most shameful and most infamous destruction'.
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