Page:History of Greece Vol II.djvu/372

 856 HISTORY OF GREECE. erroneously connected with Lykurgus himself, but at any rat* ancient. On certain occasions of peculiar moment, they take the sense of the senate, and the public assembly, 1 such seems to have been the habit on questions of war and peace. It ap- pears, however, that persons charged with homicide, treason, or capital offences generally, were tried before the senate. We read of several instances in which the kings were tried and severely fined, and in which their houses were condemned to be razed to the ground, probably by the senate, on the proposition of the ephors : in one instance, it seems that the ephors inflicted by their own authority a line even upon Agesilaus. 2 War and peace appear to have been submitted, on most, if not on all occasions, to the senate and the public assembly ; no matter could reach the latter until it had passed through the former. And we find some few occasions on which the decision of the public assembly was a real expression of opinion, and operative as to the result, as, for example, the assembly which immedi ZKuprav 67.EL, d/l/lo 61 ovdlv (Krebs, Lectioncs Diodorcae, p. 140. Aristotcl. Ilept Tlo/Urawv, ap. Schol. ad Eurip. Andromach. 446. Schumann, Comm ad Plutarch. Ag. et Cleomen. p. 123). Nitzsch has good remarks in explanation of the prohibition against " using written laws." This prohibition was probably called forth by the circumstance that other Grecian states were employing lawgivers like Zaleukus, Drako, Charondas, or Solon, to present them, at once, with a series of written enactments, or provisions. Some Spartans may have proposed that an anal- ogous lawgiver should be nominated for Sparta : upon which proposition a negative was put in the most solemn manner possible, by a formal Rhetra, per- haps passed after advice from Delphi. There is no such contradiction, there- fore, (when we thus conceive the event,) as some authors represent, in forbid- ding the use of written laws by a Rhetra itself, put into writing. To employ a phrase in greater analogy with modern controversies " The Spartans, on the direction of the oracle, resolve to retain their unwritten common law, and not to codify." 1 *EJc|e Tolf 'E06/>o:f icai ry iKKTirjcria (Xen. Hellen. iii. 2, 23). 16 ; A'jis the Second, Thucyd. v. 63 ; Agis tfie Third, Plutarch, Agis, c. 19 : se 1'lutarch, Agesilaus, c. 5. Respecting the ephors generally, see Wachsmuth, Hellen. Alterthum skunde, v. 4, 42, vol. i. p. 223 ; Cragius, Rep. Lac. ii. 4, p. 121. Aristotle distinctly marks the ephors as uvvxevdvvoi : so that the ston alluded to briefly in the Rhetoric (iii. 18) is not easy to be undcrsiood.
 * The case of Leotychides, Herod, vi. 72 ; of Pleistoanax, Thucyd. ii. 21-v.