was certain to bring disaster and despotism upon society. But the Aryans and part of their descendants successfully held a middle course. They had priests, but no exclusive priestly caste, and the performance of religious rites was free to heads of families, of gentes, and of tribes; in many cases it was even obligatory upon them. By this distribution of the spiritual power, it was rendered comparatively harmless. The priests were not strong enough to enter upon a contest for the supreme power, yet their influence limited and checked the growth of secular despotism,1 inculcating, as religion necessarily must, whenever the two powers are not united, that God should be obeyed rather than the human ruler. Just as during the Middle Ages, so now in the dawn of history, this division of secular and spiritual power favored the development of the human intellect and the formation of a limited government.

The Homeric king is essentially a constitutional king. Though reputed to be of divine descent, his power is narrowly limited by custom, and by the influence of the council composed of the heads of the confederate clans, who bear as well as he the title Basileus. He is the commander in war. He represents the state in its dealings with foreign states and with the gods. He presides in the Boulé and in the Agora. But he does not enter upon any important undertaking without first assuring himself of the support of his chiefs and people. Nor does he make laws, levy taxes, or even administer justice on his own authority. In the trial scene represented on the shield of Achilles, it is the council who form the jury, while the people standing around express their preferences by shouts; the verdict, even if finally pronounced by the king, is thus evidently not found by him. Laws, moreover, are not made by any one. The legislative power, which Montesquieu attributes to the assembly, does not exist at this stage of civilization.3 Government is a mere matter of administration. In place of laws made by man there are customs, which since they arise and change slowly and imperceptibly

1 Sophocles, Antigone; Curtius, Griech. Geschichte (3 Aufl.), I, 129. Iliad, XVI, 542; Busolt, Griech. Staats- und Rechtsalt., §§ 29-31, 34.

3 Montesquieu, Esprit des Lois, XI, 11; Maine, p. 8; Spencer, Prin. of Soc., §§ 466-468, 531.

from generation to generation, seem mysterious in origin and are hence attributed to the gods. As the conditions of life change and new cases arise, they are settled by themistes - decisions which are regarded as divinely inspired, and which, through the recurrence of the same or similar circumstances, become the foundation of new customary laws. In these themistes we behold the first form of legislation, not yet consciously recognized as of human origin.' Here, as in all early civilizations, the first, and during long ages the only, legislatures are the courts of justice. It is not until the era of codes that human enactments are conceived as capable of giving rise to law.

It thus appears that in the heroic Greek polity, the legislative power was lacking; and that the judicial and executive powers, so far from belonging to the king alone, as Montesquieu asserts, were for the most part exercised in common by king, council, and assembly. This form of division of power is common in primitive societies, at least among Aryans, and constitutes the necessary prerequisite to any further specialization of functions. For the division of power could not possibly occur to any one as a theory until it already existed as a fact; and it came into existence as a fact only through the coexistence of social and political forces severally willing and able to vindicate for themselves a share in the government.

With the disappearance of kingship, the balance of power in the system was broken. The importance of this revolution lay not in the change of name, but in the destruction of the office. Henceforth there was not, and could not be, an independent executive or administrative organ in the government. In consequence, power was centralized. The oligarchies which succeeded the heroic monarchies usually parcelled out the executive and judicial powers among a number of magistrates elected by, and responsible to, the assembly of active citizens, i.e., usually the Boulé, which thus became the only independent power in the government. The democracies still further multiplied the number and reduced the power of the magistrates, thus making them still more completely the servants of the sovereign assembly, bound to obey its every whim and bend to its every gust of pas2 Busolt, §§ 33, 49; Roscher, Politik, § 76.

Busolt, § 3.

sion. And when finally the dikasteries, that is, the assembly sitting in sections, came to exercise practically the entire judicial power, being judges at once of the law and the facts, a degree of centralization was reached beyond which it was impossible to go. In Sparta, the same result was later attained through the board of Ephors, who concentrated in their hands the whole power of the state, the so-called kings retaining no more real authority, and the senate and assembly but little more, than the Merowingian Fainéants enjoyed.' The powers exercised by the Athenian Assembly and the Spartan Ephors needed but to come into the hands of one man and behold a tyrant, master of the life and fortune of every citizen. The tyrant could be killed, but the tyranny remained. Whatever its form, the government was equally and necessarily a despotism: for its power over the individual was legally and morally unlimited, and this enormous power was exercised by one man or one body of men.' And when religion had lost its hold, when law no longer counted as a gift of the gods, but as an arbitrary command of a chance majority, when men came to contend not for principle but for plunder, and in this contest employed the power of the state as their chief and most effective weapon, then the full consequences of the omnipotence and centralization of government were brought to view; and it is doubtful if history contains any page more sickening than that recording the events in Greece between the beginning of the Peloponnesian war and the sack of Corinth.3 The whole violence of social and political warfare was concentrated into one effort, to retain or gain possession of the government; and the constitution, becoming the prize of party victory, was changed with every turn of the wheel of fortune. And so it came about that none of the simple or unmixed, i.e., the centralized forms of government possessed the first requisites of stability; each quickly degenerated and gave place to another, which in turn underwent the same fate, and so on around the fateful circle which Aristotle and Polybius so vividly described. Nor is the reason far to seek. The simple or centralized governments,

1 Busolt, §§ 94-95.

2 Ferron, De la Division du Pouvoir Législatif (1885), pp. 12-13; Busolt, § 47. 3 Beloch, Die attische Politik seit Perikles (1884); Roscher, § 123.

whether the ruler be one, or a few, or many, are all near of kin and readily convertible into each other - a fact proved in modern times by the example of France; since such governments differ from each other only in one point of minor importance, namely, the number of persons who constitute the tyrant. For this reason they all deserve the name which Aristotle reserved for the second stage of each; they are parekbaseis — abnormal, one-sided forms, produced by the growth of one part of the constitution at the expense of the others;' at the expense, likewise, of the soundness and stability of the whole organization.

This fact early attracted attention. The Greeks had recognized, long before the loss of their independence, that from a political point of view, they had failed ignominiously; and they attributed their failure, in part at least, to the concentration that is, the lack of division-of power. In support of this proposition, two separate and significant proofs may be adduced.

The first is, the attempts which were made at Athens to limit the power of the Assembly: to establish some body which should have the right and duty to confine demagogues and demos within the bounds prescribed by law.

In the Solonian constitution, the two senates were intended to serve as anchors for the ship of state. The Four Hundred had the legislative initiative. The Areopagus was the supreme interpreter and guardian of the laws, with power to set aside resolutions of the Four Hundred and the Assembly, thus occupying a place strikingly like that of the American Supreme Court. The value of these safeguards was tested and approved in the stormy years extending from the expulsion of the Pisistratida to the end of the Persian wars. To them was due in no small measure that union of prudence and energy which enabled Athens to overcome seemingly insuperable odds. In consequence, the Areopagus never stood higher in public confidence and respect than during the two decades following the retreat of Xerxes.

When Themistocles and Ephialtes had deprived the Areopagus of its supervisory power an action dictated by personal motives

1 Lang, Essays on the Politics of Aristotle, pp. 141-142; Spencer, Prin. of Soc., § 465.

2 Plutarch, Solon, 19; Aristotle. Athen. Pol., 8; Isokr., Areop., 37.

1 1

and carried out in a truly Greek manner, if Aristotle is to be believed the Graphé Paranomon was devised as a substitute. This was an indictment which could be moved by any one against the proposer of any decree or law, either on the spot, or at any time within a year. It caused the decree or law in question to be suspended until a dikastery passed judgment upon it; and if the indictment was sustained, the decree or law was ipso facto annulled. This process still subjected the Assembly to the decision of a court. But unlike the Areopagus, this court was merely a section of the Assembly itself, and could not be expected to show either more wisdom or more intelligence than the larger body; hence cases were argued on every other ground rather than that of constitutionality, and faction, extortion, and bribery played the same rôle in this court as in all others. Doubtless the Graphé Paranomon was better than nothing, but its inadequacy was shown by the disorganization which followed the weakening of the Areopagus. Though checked by Pericles, the disease set in worse than ever after his death, deriving additional force from the measures by which he had purchased the favor of the rabble. The Assembly assumed the power of initiating measures without the authority of the Boulé, and without the need of confirmation. Decrees (npíopara) overrode laws (vóμo). The generals who had won the victory of Arginusæ but had failed to pick up the dead were put to death without trial, in defiance of all law; and the words which Xenophon reports on this occasion"The crowd shouted that it would be outrageous for any one to hinder the people from doing whatsoever they liked" -express only too well the spirit of mob rule in all ages. That the people shortly after repented and ordered the accuser of the generals to be prosecuted, only completes the chain of evidence against a polity which provided no authority to resist the “jussa civium prava jubentium" - that is to say, against a government in which power was not divided.

That the Athenians themselves saw the true cause of their

Aristot., Athen. Pol., 25.

Aristot., Athen. Pol., 26.

Grote. Pt., II, ch. 46.

4 τὸ δὲ πλήθυς ἐβόα δεινὸν εἶναι, εἰ μή τις ἐάσει τὸν δῆμον πράττειν 8 ἂν βούληται. — Hell. I, 7, 12.