§ 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 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 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 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 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 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 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 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 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 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 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 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 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
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 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 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)