Chapter VII.
§ 1. Origin of the office of Ephor in the Spartan state. § 2. Period of its creation. § 3. Civil jurisdiction of the Ephors. § 4. Increase in the powers of the Ephors. § 5. Their transaction of business with the assembly of citizens, and with foreign powers. § 6. The power of the Ephors, owing to their ascendency over the assembly of citizens. § 7. Miscellaneous facts concerning the office of Ephor. § 8. Titles and duties of other magistrates at Sparta.
1. Before we treat of the powers of the cosmi, it will be necessary to inquire into an office, which is of the greatest importance in the history of the Lacedæmonian constitution; for while the king, the council, and the people, preserved upon the whole the same political power and the same executive authority, the office of the ephors was the moving principle by which, in process of time, this most perfect constitution was assailed, and gradually overthrown. From this remark three questions arise: first, what was the original nature of the office of ephor? secondly, what changes did it experience in the lapse of time? and, thirdly, from what causes did these changes originate?
There is an account frequently repeated by ancient writers, that Theopompus, the grandson of Charilaus the Proclid, founded this office in order to limit the authority of the Kings. “He handed down the royal power to his descendants more durable, because he had diminished it.”[463] If, however, the ephoralty was an institution of Theopompus, it is difficult to account for the existence of the same office in other Doric states. In Cyrene the ephors punished litigious people and impostors with infamy:[464] the same office existed in the mother-city Thera,[465] which island had been colonised from Laconia long before the time of Theopompus. The Messenians also would hardly, upon the re-establishment of their state, have received the ephoralty into their government,[466] if they had thought it only an institution of some Spartan king. The ephors of the Tarentine colony Heraclea may be more easily derived from Sparta and the time of Theopompus.[467] It is however plain that Herodotus[468] and Xenophon[469] placed the ephoralty [pg 116] among the institutions of Lycurgus, with as much reason as other writers attributed it to Theopompus; and it will probably be sufficient to state that the ephors were ancient Doric magistrates.
The ephoralty, however, considered as an office opposed to the kings and to the council, is not for this reason an institution less peculiar to the Spartans; and in no Doric, nor even in any Grecian state, is there any thing which exactly corresponds with it. It is evident, therefore, that it must have gradually obtained this peculiar character by causes which operated upon the Lacedæmonian state alone. Hence it appears, that the supposed expression of Theopompus referred rather to the powers of the ephors in later times, than to their original condition. At least Cleomenes the Third was ignorant of this account of them; since, after the abolition of these magistrates, he proposed, in a speech to the people, that the ephors should again be what they were originally (when they were elected in the first Messenian war), viz., the deputies and assistants of the king. In this proposal indeed a very partial view is displayed; for every magistrate must necessarily [pg 117] choose his own deputy; whereas the democratic election of the ephors was, as we shall presently see, an essential part of their office. From the accounts just adduced, we do not however wish to infer any thing further, than how variable were the opinions, and how little historical the statements, concerning the original object of the ephoralty.
2. In the constitution of Lycurgus, as it has been hitherto developed, the ephoralty of later times would not only have been a superfluous, but a destructive addition. For in this the king, the council, and the people constituted the chief authorities; and to suppose that any part would require either check or assistance, would have been inconsistent with the plans of the legislator. A counter-authority, such as the ephoralty, in which the mistrust of the people was expressed in a tyrannical manner, was far removed from the innocence and simplicity of the original constitution, and could not have been introduced, until the connexion and firmness arising from the first laws had been loosened and enfeebled. The Roman office of tribune had, doubtless, a certain similarity in its first origin with the ephoralty;[470] yet the former was more imperatively required, as by it an entire people, the plebs Romana, obtained a necessary and fair representation; whereas in Sparta the gerusia, although chosen from the most distinguished citizens, belonged nevertheless to the whole Spartan people, and the democratic influence of the popular assembly served as the basis of the whole constitution.[471]
If then the extended political power of the ephors did not belong to the constitution of Lycurgus, neither can we suppose that it originated in the time of Theopompus. For the statement is worthy of credit, that Theopompus and Polydorus added the following words to the rhetra above quoted: “If however the people should follow a crooked opinion, the councillors and princes shall dissent.” Now in the first place, the ephors are here wholly omitted, although in the Peloponnesian war they put the vote to the people, and frequently made proposals in the assembly; and, secondly, the tendency of this clause is manifestly to diminish the power of the people; whereas it will be more clearly shown below, that the authority of the ephors rested upon democratical principles.
It is evident that these supposed historical traditions, instead of affording any clear explanation, lead to contradictions; and in order to obtain any distinct knowledge of the history of the ephoralty, we must proceed rather upon the evidence furnished by the nature of the office itself, and the analogy of similar offices in other states.
3. For this reason we will first consider the judicial authority of the ephors, a power which we know to have belonged also to the ephors of Cyrene. Now Aristotle[472] describes their judicial powers by saying, that they decided causes relating to contracts, while the council decided causes of homicide.[473] The latter [pg 119] was therefore a supreme criminal court, with power of life and death; the former a civil court, which gave judgment concerning contracts and property. Its influence upon the Spartans would appear to have been inconsiderable, from the opinions entertained by them on the division of property and exchange of money, perhaps less than it really was; but however this may be, the Periœci and Helots, when they were in Sparta, were under its jurisdiction. Now we have already shown, that it was a principle of the Lacedæmonian government so to divide the jurisdiction amongst the different magistrates, that the administration and jurisdiction belonged to the same officers.[474] Hence a superintendence over sales and over the market must have been the original duty of the ephors, forming the basis of their judicial authority.[475] The market, as being the central point of exchange, was no unimportant object of care:[476] every Spartan here brought a part of the corn produced by his estate, in order to exchange it for other commodities: it was in a certain manner disgraceful not to have the power of buying and selling;[477] a privilege which was also interdicted to youths: moreover, in the days of mourning for the king, the market was shut up and scattered with chaff.[478] The day upon [pg 120] which Cinadon, according to the description of Xenophon,[479] secretly endeavoured to inflame the minds of the lower classes, was evidently a market-day, and also, in my opinion, a great day of justice. A king, the ephors, the councillors, and about forty Spartans (ὅμοιοι), were in the market-place, all probably in a judicial capacity: besides whom, there were about four thousand men, chiefly occupied in buying and selling, as is seen from the fact that in one part of the market a large quantity of iron fabrics was heaped up. The ephors were therefore ἔφοροι (inspectors) over the market, and for this reason they met regularly in this place,[480] where was also situated their office.
The number of the college of ephors (five),[481] which it had in common with some other magistrates of Sparta,[482] appears, as I conjectured above,[483] to imply a democratic election—a fact which is also stated by the ancients. We know from Aristotle, that persons from the people, without property or distinction, could fill this office:[484] in what manner, indeed, is not quite manifest. Properly indeed, no magistrate in Sparta was chosen by lot;[485] but it appears that election by choice and by lot were combined.[486] In this case we [pg 121] see displayed a principle of the ancient Greek states, which administered the criminal jurisdiction on aristocratic principles, while civil causes were decided by the whole community, or its representatives. At Athens, Solon gave the popular courts a jurisdiction only in civil suits; all criminal cases were decided by the timocratic Areopagus, and the aristocratic Ephetæ. In Heraclea on the Pontus, the chief officers were chosen from a small number of the citizens, the courts of justice from the rest of the people.[487] And in Sparta also the civil judges were the deputies of the assembly—the ἁλίαια,[488] which in Athens itself acted as a court of justice under the name of ἡλίαια.
4. From the view of this office now taken, the continued extension of the powers of the ephors may be more easily accounted for. It was the regular course of events in the Grecian states, that the civil courts enlarged their influence, while the power of the criminal courts was continually on the decline. As in Athens, the Helæeea rose, as compared with the Areopagus, so in Sparta the power of the ephors increased in comparison with that of the gerusia.
In the first place, the jurisdiction of the ephors was extended[489] chiefly by their privilege of instituting scrutinies (εὔθυναι) into the official conduct of all magistrates, with the exception of the councillors.[490] By this indeed we are not to understand, that all magistrates, after the cessation of their office, rendered [pg 122] an account of their proceedings, but only that the ephors could compel them to undergo a trial, if there had been any thing suspicious in their administration; a right, however, as it extended over the ephors of the preceding year,[491] which restrained the power that it bestowed. But the ephors were not compelled to wait for the natural expiration of an office, they could suspend or deprive the officer by their judicial powers.[492] Now in this respect the king was in the very same situation with the remaining magistrates, and could, as well as the others, be brought before the tribunal of the ephors. Even before the Persian war, Cleomenes was tried before them for bribery.[493] The king was always bound to obey their summons:[494] but the fact of his not being compelled to yield till the third time, was used by Cleomenes III. as an argument to prove that the power of the ephors was originally an usurpation.[495] At the same time, their power extended in practice so far, that they could accuse the king, as well as the other magistrates, in extreme cases, without consulting the assembly, and could bring him to trial for life and death.[496] This larger court consisted of [pg 123] all the councillors, of the ephors, who thus came before it as accusers, besides having the right of sitting as judges, of the other king, and probably of several magistrates, who had all equal votes.[497] From this court there was no appeal; it had power to condemn the king to death;[498] although, until later times, it was prevented by a religious scruple from executing this sentence.[499] That its proceedings were commonly carried on with great propriety and composure, is stated upon the occasion of an instance to the contrary.[500] This great court of magistrates we frequently find deciding concerning public crimes with supreme authority,[501] and the ephors acting in it as accusers:[502] but that the ephors had power of themselves to punish with death, I deny most decidedly:[503] whether they had authority to banish, I even doubt.[504] The inaccuracy of later writers has confounded the steps preparatory to the sentence, with the sentence itself; a power of life and death in the hands of the ephors would have been worse than tyranny. The [pg 124] ephors, when they judged for themselves, were only able to impose fines, and to compel an instantaneous payment.[505] Their power of punishing the kings in this manner, or by a reprimand, was doubtless very extensive, and appears to have been subject to no limitation. Agesilaus was fined by them for endeavouring to make himself popular,[506] and Archidamus was censured for having married too small a wife,[507] which implies the opinion, that the community had a right to require their kings to keep up a robust family.[508] The kings, however, were compelled to submit to this treatment, in a state in which every magistrate exercised the full powers of his office with a certain degree of severity. We find, however, that the ephors had also jurisdiction in cases which were neither civil actions nor the scrutinies of public officers; for example, they punished a man for having brought money into the state;[509] another for indolence;[510] a third from the singular reason that he was generally injured and insulted:[511] and their share in the superintendence of public education,[512] as well as over the celebration of the public games,[513] gave them a jurisdiction in causes relating to these points. In cases [pg 125] of this kind, however, we are ignorant how far they acted as a separate board, and how far in connexion with other magistrates, for example, as assessors of the kings.[514] They judged according to unwritten laws, as Sparta knew no others. Aristotle calls this, deciding according to their will and pleasure.[515]
5. Another more important circumstance, as affecting the extension of the power of the ephors, was, that these officers (from what time we are not informed) placed themselves in connexion with the popular assembly, so that they had a right to transact business with it in preference to all other magistrates. They had power to convene the people,[516] and put the vote to them.[517] They must in early times have had the privilege of proposing laws[518] (but doubtless not till after they had passed through the gerusia), if the ephor Chilon is correctly called a legislator.[519] They also possessed great authority in transactions with foreign nations. They admitted ambassadors, and had also power to dismiss them from the boundary,[520] likewise to expel suspected foreigners from the state,[521] and therefore they were probably the chief managers of the Xenelasia. They frequently carried on the negotiations with foreign ambassadors, with full powers of treating;[522] and had great influence, especially of a preparatory nature,[523] upon declarations of war, as well as armistices and treaties of peace,[524] which the ephors, and [pg 126] particularly the first among them, swore to and subscribed in presence of other persons.[525] To them also was intrusted the right of dismissing ambassadors.[526] In time of war they were empowered to send out troops (φρουρὰν φαίνειν[527]) on whatever day seemed to them expedient;[528] and they even appear to have had authority to determine the number of men.[529] The army they then intrusted to the king, or some other general,[530] who received from them instructions how to act;[531] sent back to the ephors for fresh instructions;[532] were restrained by them through the attendance of extraordinary plenipotentiaries;[533] were recalled by means of the scytale;[534] summoned before a judicial tribunal;[535] and their first duty after their return was to visit the office of the ephors.[536] These officers also sent commands, with respect to discipline, to standing armies abroad,[537] Now in these cases the ephors must [pg 127] have acted, not upon their own authority, but as the agents of the public assembly;[538] it was their duty to execute the decrees of the people, the mode being left in some degree to their discretion. For this reason the assembly is frequently mentioned, together with the ephors, in the same cases in which on other occasions the ephors alone are represented as acting. The ephors were often manifestly mediators between the generals and the assembly. In the field the king was followed by two ephors, who belonged to the council of war;[539] it is probable that they had the chief care of the maintenance of the army, as well as the division of the plunder:[540] those ephors who remained behind in Sparta received the booty in charge, and paid it in to the public treasury.[541] We also find the ephors deciding with regard to conquered cities, whether they should be dependent or independent;[542] they suppressed the ten governors appointed by Lysander, nominated harmosts,[543] &c.; all evidently in the name and authority of that power, which it would have been against all principles of a free constitution to intrust to the college of ephors.
6. Although we are prevented from obtaining an entirely clear view of this subject, and particularly from pointing out all the collisions between the authority [pg 128] of the ephors and other magistrates, by the secret nature of the Spartan constitution,[544] it is yet evident that the powers of the ephors were essentially founded upon the supreme authority of the popular assembly, whose agents and plenipotentiaries they were. Every popular assembly is necessarily an unskilful body, and little able to act both with energy and moderation; least of all was the Spartan assembly capable of transacting and executing any complicated business. For this reason it intrusted to the ephors, who were chosen upon democratic principles from among the people, a power similar to that which the public leaders or demagogues of Athens exercised in so pernicious a manner. Plato and Aristotle compare their authority with a tyranny:[545] and it is to be remembered that in Greece tyrants continually rose from demagogues. Accordingly the ephors reached the summit of their power when they began to lead the public assembly: it is probable that this was first done by the ephor Asteropus, who is one of the first persons to whom the extension of the powers of that office is ascribed,[546] and who probably lived not long before the time of Chilon. The extensive political influence of Lacedæmon also contributed to give a greater importance to the ephoralty. Chasms arose in the constitution of Lycurgus, which had been intended for a simpler state of things, and were filled up by the ambition of these magistrates. The transactions with foreign states required a small number of skilful and clever men; the gerusia was too helpless, simple, and antiquated for this purpose; and accordingly the sphere of its operations [pg 129] appears to have been confined to domestic affairs. And lastly, as the finances of Sparta became continually an object of greater and greater importance, the influence of the officers necessarily increased, who had, as it appears, at all times the management of the treasury.
7. There are some other facts which may be added respecting the official proceedings of the ephors. They commenced their annual office with the autumnal equinox, the beginning of the Lacedæmonian year.[547] The first of them gave his name to the year, which was called after him in all public transactions. They commenced their official duties with a species of edict, by which the secret officers (κρυπτοὶ) were sent out: it appears from this that they also exercised a superintendence over the discipline of the Helots and Periœci.[548] In the same edict it was ordered “to shave the beard,” “and obey the laws,”[549] the former being a metaphorical, and indeed rather a singular expression for subjection and obedience. They held their daily meetings in the ephors' office, in which they also ate together.[550] In this house foreigners and ambassadors were introduced, and hospitably entertained.[551] Next to the Ephoreum stood a temple of Fear, which the dictatorial power of [pg 130] these magistrates doubtless inspired in the citizens.[552] Lastly, these officers also required a religious foundation for their dignity. The ephors at certain periods saw dreams in the temple of Pasiphaa at Thalamæ, and their visions were politically interpreted: we know that a dream of this kind stimulated the Spartans to return to their ancient equality.[553] Of their periodical inspection of the heavens we have already spoken, when treating of the kingly office:[554] and it is remarkable that this custom, which was doubtless of great antiquity, occurs first in very late times, and was used in support of the tyranny of the ephors over the kings. It is these later times in particular which confirm the assertion made in the beginning of the chapter, that the ephoralty was the moving element, the principle of change, in the Spartan constitution, and, in the end, the cause of its final dissolution; for the ephors, being brought by means of their jurisdiction and their political duties into extensive intercourse with foreign nations, were the first to give up the severe customs of ancient Sparta, and to admit a greater luxury of manners. Even Aristotle censures their relaxed mode of life.[555] It is still more to our purpose that the decrees which undermined the constitution of Sparta originated from these magistrates: it was the ephor Epitadeus who first carried through the law permitting the free inheritance of property. For this reason it was necessary for the royal heroes Agis and Cleomenes, when, in a fruitless but glorious struggle with the degenerate age, they undertook to restore the constitution [pg 131] of Lycurgus, to begin with the overthrow of the ephors.[556]
8. The undefined and vague nature of the authority of the ephors[557] is strongly opposed to the accurate designation of the duties of the other annual officers. Although there were many officers of this description at Sparta, we seldom find any mention of them, as they rarely overstepped the legal bounds of their authority. Yet it is possible that the name τέλη,[558] which is so frequently used for the presidents of the assembly, and the high court for state offences, and which to a foreigner rather concealed than explained the internal affairs of Sparta, comprehended other magistrates, according to the circumstances of the case, besides the kings, councillors, and ephors. The nomophylaces and bidiæi,[559] as well as the ephors, had their offices in the market-place. The duties of the former officers are declared by their name, of their number we know nothing; of the latter there were five, and their business was to inspect the gymnastic exercises.[560] The harmosyni were appointed to superintend the manners of the women;[561] the buagi regulated a part of the education; to the empelori belonged the market-police.[562]
The polemarchs also, in addition to their military functions, had a civil, together with a certain judicial power. In some Laconian inscriptions, belonging to the Roman time, many names of nomophylaces, buagi, and σύσσιτοι of the magistrates are recorded; the meaning of the latter distinction is obscure. The election of regular nomophylaces was an occurrence somewhat unusual.[563] With regard to later times we may further observe, that the ephoralty, which was abolished by Cleomenes, was re-established under the Roman dominion;[564] and that the same king instituted a college of πατρονόμοι in the place of the gerusia,[565] although Pausanias again mentions gerontes; unless it is possible that the two councils coexisted. An inscription of the second century of the Christian era[566] mentions a σύνδικος at Sparta, a public advocate, and δαμοσιομάστης, a public inquisitor, and interpreter of the laws of Lycurgus, concerning whom, as well as others of the magistrates here mentioned, we will say more hereafter.[567]