The original duties of the Gerusia were to prepare the decrees and business to be submitted to the people; they had the power of inflicting death or degradation without written laws, they interpreted custom, and were intended to preserve and transmit it. The power of the kings may be divided into two heads--power at home--power abroad: power as a prince--power as a general. In the first it was limited and inconsiderable. Although the kings presided over a separate tribunal, the cases brought before their court related only to repairs of roads, to the superintendence of the intercourse with other states, and to questions of inheritance and adoption.
When present at the council they officiated as presidents, but without any power of dictation; and, if absent, their place seems easily to have been supplied. They united the priestly with the regal character; and to the descendants of a demigod a certain sanctity was attached, visible in the ceremonies both at demise and at the accession to the throne, which appeared to Herodotus to savour rather of Oriental than Hellenic origin. But the respect which the Spartan monarch received neither endowed him with luxury nor exempted him from control. He was undistinguished by his garb--his mode of life, from the rest of the citizens. He was subjected to other authorities, could be reprimanded, fined, suspended, exiled, put to death. If he went as ambassador to foreign states, spies were not unfrequently sent with him, and colleagues the most avowedly hostile to his person associated in the mission. Thus curbed and thus confined was his authority at home, and his prerogative as a king. But by law he was the leader of the Spartan armies. He assumed the command--he crossed the boundaries, and the limited magistrate became at once an imperial despot! [132] No man could question--no law circumscribed his power. He raised armies, collected money in foreign states, and condemned to death without even the formality of a trial. Nothing, in short, curbed his authority, save his responsibility on return. He might be a tyrant as a general; but he was to account for the tyranny when he relapsed into a king. But this distinction was one of the wisest parts of the Spartan system; for war requires in a leader all the license of a despot; and triumph, decision, and energy can only be secured by the unfettered exercise of a single will. Nor did early Rome owe the extent of her conquests to any cause more effective than the unlicensed discretion reposed by the senate in the general. [133]
VI. We have now to examine the most active and efficient part of the government, viz., the Institution of the Ephors. Like the other components of the Spartan constitution, the name and the office of ephor were familiar to other states in the great Dorian family; but in Sparta the institution soon assumed peculiar features, or rather, while the inherent principles of the monarchy and the gerusia remained stationary, those of the ephors became expanded and developed. It is clear that the later authority of the ephors was never designed by Lycurgus or the earlier legislators. It is entirely at variance with the confined aristocracy which was the aim of the Spartan, and of nearly every genuine Doric [134] constitution. It made a democracy as it were by stealth. This powerful body consisted of five persons, chosen annually by the people. In fact, they may be called the representatives of the popular will--the committee, as it were, of the popular council. Their original power seems to have been imperfectly designed; it soon became extensive and encroaching. At first the ephoralty was a tribunal for civil, as the gerusia was for criminal, causes; it exercised a jurisdiction over the Helots and Perioeci, over the public market, and the public revenue. But its character consisted in this:--it was strictly a popular body, chosen by the people for the maintenance of their interests. Agreeably to this character, it soon appears arrogating the privilege of instituting an inquiry into the conduct of all officials except the counsellors. Every eighth year, selecting a dark night when the moon withheld her light, the ephors watched the aspect of the heavens, and if any shooting star were visible in the expanse, the kings were adjudged to have offended the Deity and were suspended from their office until acquitted of their guilt by the oracle of Delphi or the priests at Olympia. Nor was this prerogative of adjudging the descendants of Hercules confined to a superstitious practice: they summoned the king before them, no less than the meanest of the magistrates, to account for imputed crimes. In a court composed of the counsellors (or gerusia), and various other magistrates, they appeared at once as accusers and judges; and, dispensing with appeal to a popular assembly, subjected even royalty to a trial of life and death. Before the Persian war they sat in judgment on the King Cleomenes for an accusation of bribery;--just after the Persian war, they resolved upon the execution of the Regent Pausanias. In lesser offences they acted without the formality of this council, and fined or reprimanded their kings for the affability of their manners, or the size [135] of their wives. Over education--over social habits-over the regulations relative to ambassadors and strangers--over even the marshalling of armies and the number of troops, they extended their inquisitorial jurisdiction. They became, in fact, the actual government of the state.
It is easy to perceive that it was in the nature of things that the institution of the ephors should thus encroach until it became the prevalent power. Its influence was the result of the vicious constitution of the gerusia, or council. Had that assembly been properly constituted, there would have been no occasion for the ephors. The gerusia was evidently meant, by the policy of Lycurgus, and by its popular mode of election, for the only representative assembly. But the absurdity of election for life, with irresponsible powers, was sufficient to limit its acceptation among the people. Of two assemblies--the ephors and the gerusia--we see the one elected annually, the other for life--the one responsible to the people, the other not--the one composed of men, busy, stirring, ambitious, in the vigour of life--the other of veterans, past the ordinary stimulus of exertion, and regarding the dignity of office rather as the reward of a life than the opening to ambition. Of two such assemblies it is easy to foretell which would lose, and which would augment, authority. It is also easy to see, that as the ephors increased in importance, they, and not the gerusia, would become the check to the kingly authority. To whom was the king accountable? To the people:--the ephors were the people's representatives! This part of the Spartan constitution has not, I think, been sufficiently considered in what seems to me its true light; namely, that of a representative government. The ephoralty was the focus of the popular power. Like an American Congress or an English House of Commons, it prevented the action of the people by acting in behalf of the people. To representatives annually chosen, the multitude cheerfully left the management of their interests [136]. Thus it was true that the ephors prevented the encroachments of the popular assembly;--but how? by encroaching themselves, and in the name of the people! When we are told that Sparta was free from those democratic innovations constant in Ionian states, we are not told truly. The Spartan populace was constantly innovating, not openly, as in the noisy Agora of Athens, but silently and ceaselessly, through their delegated ephors. And these dread and tyrant FIVE--an oligarchy constructed upon principles the most liberal--went on increasing their authority, as civilization, itself increasing, rendered the public business more extensive and multifarious, until they at length became the agents of that fate which makes the principle of change at once the vital and the consuming element of states. The ephors gradually destroyed the constitution of Sparta; but, without the ephors, it may be reasonably doubted whether the constitution would have survived half as long. Aristotle (whose mighty intellect is never more luminously displayed than when adjudging the practical workings of various forms of government) paints the evils of the ephoral magistrature, but acknowledges that it gave strength and durability to the state. "For," [137] he says, "the people were contented on account of their ephors, who were chosen from the whole body." He might have added, that men so chosen, rarely too selected from the chiefs, but often from the lower ranks, were the ablest and most active of the community, and that the fewness of their numbers gave energy and unity to their councils. Had the other part of the Spartan constitution (absurdly panegyrized) been so formed as to harmonize with, even