As I am writing the history, not of Greece, but of Athens, I do not consider it necessary that I should detail the legendary life of Lycurgus. Modern writers have doubted his existence, but without sufficient reason:such assaults on our belief are but the amusements of skepticism. All the popular accounts of Lycurgus agree in this that he was the uncle of the king (Charilaus, an infant), and held the rank of protectorthat unable successfully to confront a powerful faction raised against him, he left Sparta and travelled into Crete, where all the ancient Doric laws and manners were yet preserved, vigorous and unadulterated. There studying the institutions of Minos, he beheld the model for those of Sparta. Thence he is said to have passed into Asia Minor, and to have been the first who collected and transported to Greece the poems of Homer 127, hitherto only partially known in that country. According to some writers, he travelled also into Egypt; and could we credit one authority, which does not satisfy even the credulous Plutarch, he penetrated into Spain and Libya, and held converse with the Gymnosophists of India.
Returned to Sparta, after many solicitations, he found the state in disorder: no definite constitution appears to have existed; no laws were written. The division of the regal authority between two kings must have produced jealousyand jealousy, faction. And the power so divided weakened the monarchic energy without adding to the liberties of the people. A turbulent nobilityrude, haughty mountain chiefs made the only part of the community that could benefit by the weakness of the crown, and feuds among themselves prevented their power from becoming the regular and organized authority of a government 128. Such disorders induced prince and people to desire a reform; the interference of Lycurgus was solicited; his rank and his travels gave him importance; and he had the wisdom to increase it by obtaining from Delphi (the object of the implicit reverence of the Dorians) an oracle in his favour.
Thus called upon and thus encouraged, Lycurgus commenced his task. I enter not into the discussion whether he framed an entirely new constitution, or whether he restored the spirit of one common to his race and not unfamiliar to Sparta. Common sense seems to me sufficient to assure us of the latter. Let those who please believe that one man, without the intervention of armsnot as a conqueror, but a friendcould succeed in establishing a constitution, resting not upon laws, but mannersnot upon force, but usageutterly hostile to all the tastes, desires, and affections of human nature: moulding every the minutest detail of social life into one systemthat system offering no temptation to sense, to ambition, to the desire of pleasure, or the love of gain, or the propensity to easebut painful, hard, steril, and unjoyous;let those who please believe that a system so created could at once be received, be popularly embraced, and last uninterrupted, unbroken, and without exciting even the desire of change for four hundred years, without having had any previous foundation in the habits of a peoplewithout being previously rooted by time, custom, superstition, and character into their breasts. For my part, I know that all history furnishes no other such example; and I believe that no man was ever so miraculously endowed with the power to conquer nature. 129
But we have not the smallest reason, the slightest excuse, for so pliant a credulity. We look to Crete, in which, previous to Lycurgus, the Dorians had established their laws and customs, and we see at once the resemblance to the leading features of the institutions of Lycurgus; we come with Aristotle to the natural conclusion, that what was familiar to the Dorian Crete was not unknown to the Dorian Sparta, and that Lycurgus did not innovate, but restore and develop, the laws and the manners which, under domestic dissensions, might have undergone a temporary and superficial change, but which were deeply implanted in the national character and the Doric habits. That the regulations of Lycurgus were not regarded as peculiar to Sparta, but as the most perfect development of the Dorian constitution, we learn from Pindar 130, when he tells us that the descendants of Pamphylus and of the Heraclidae wish always to retain the Doric institutions of Aegimius. Thus regarded, the legislation of Lycurgus loses its miraculous and improbable character, while we still acknowledge Lycurgus himself as a great and profound statesman, adopting the only theory by which reform can be permanently wrought, and suiting the spirit of his laws to the spirit of the people they were to govern. When we know that his laws were not written, that he preferred engraving them only on the hearts of his countrymen, we know at once that he must have legislated in strict conformity to their early prepossessions and favourite notions. That the laws were unwritten would alone be a proof how little he introduced of what was alien and unknown.
V. I proceed to give a brief, but I trust a sufficient outline, of the Spartan constitution, social and political, without entering into prolix and frivolous discussions as to what was effected or restored by Lycurguswhat by a later policy.
There was at Sparta a public assembly of the people (called alia), as common to other Doric states, which usually met every full moonupon great occasions more often. The decision of peace and warthe final ratification of all treaties with foreign powersthe appointment to the office of counsellor, and other important dignitiesthe imposition of new lawsa disputed succession to the throne,were among those matters which required the assent of the people. Thus there was the show and semblance of a democracy, but we shall find that the intention and origin of the constitution were far from democratic. If the people should opine perversely, the elders and the princes shall dissent. Such was an addition to the Rhetra of Lycurgus. The popular assembly ratified laws, but it could propose noneit could not even alter or amend the decrees that were laid before it. It appears that only the princes, the magistrates, and foreign ambassadors had the privilege to address it.
The main business of the state was prepared by the Gerusia, or council of elders, a senate consisting of thirty members, inclusive of the two kings, who had each but a simple vote in the assembly. This council was in its outline like the assemblies common to every Dorian state. Each senator was required to have reached the age of sixty; he was chosen by the popular assembly, not by vote, but by acclamation. The mode of election was curious. The candidates presented themselves successively before the assembly, while certain judges were enclosed in an adjacent room where they could hear the clamour of the people without seeing the person, of the candidate. On him whom they adjudged to have been most applauded the election fell. A mode of election open to every species of fraud, and justly condemned by Aristotle as frivolous and puerile 131. Once elected, the senator retained his dignity for life: he was even removed from all responsibility to the people. That Mueller should consider this an admirable institution, a splendid monument of early Grecian customs, seems to me not a little extraordinary. I can conceive no elective council less practically good than one to which election is for life, and in which power is irresponsible. That the institution was felt to be faulty is apparent, not because it was abolished, but because its more important functions became gradually invaded and superseded by a third legislative power, of which I shall speak presently.
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 headspower at homepower abroad: power as a princepower 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 garbhis 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 commandhe crossed the boundaries, and the limited magistrate became at once an imperial despot! 132 No man could questionno 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 willthe 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 educationover social habits-over the regulations relative to ambassadors and strangersover 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 assembliesthe ephors and the gerusiawe see the one elected annually, the other for lifethe one responsible to the people, the other notthe one composed of men, busy, stirring, ambitious, in the vigour of lifethe 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 peoples 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 FIVEan oligarchy constructed upon principles the most liberalwent 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 in checking, the power of the ephors; and, above all, had it not been for the lamentable errors of a social system, which, by seeking to exclude the desire of gain, created a terrible reaction, and made the Spartan magistrature the most venal and corrupt in Greecethe ephors might have sufficed to develop all the best principles of government. For they went nearly to recognise the soundest philosophy of the representative system, being the smallest number of representatives chosen, without restriction, from the greatest number of electors, for short periods, and under strong responsibilities. 138