§ 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.