The new deities came with war captives, returning soldiers, and merchants. Traders from Asia and Egypt set up temples in Puteoli, Ostia, and Rome for the cult of their traditional gods. The Roman government treated these alien faiths for the most part with toleration; since it would not admit foreigners to its own worship it preferred that they should practice their imported rites rather than have no religion at all. In return it required that each new faith should exercise a similar tolerance towards other creeds, and should include in its ritual some obeisance to the emperor’s “genius” and the goddess Roma, as an expression of loyalty to the state. Encouraged by this lenience, the Oriental faiths already domiciled in Rome became major religions of the populace. Hoping to civilize the cult, Claudius removed the restrictions that had harassed the worship of the Great Mother; he allowed Romans to become her ministrants, and established her feast around the vernal equinox, from March 15 to 27. Her chief rival in this first Christian century was Isis, the Egyptian goddess of motherhood, fertility, and trade. Again and again the government had forbidden the cult in Rome, but it always returned; the piety of the devotees overcame the power of the state, and Caligula marked the surrender by building with public funds an immense shrine to her in the Field of Mars. Otho and Domitian took part in the Isiac festivals; Commodus, with shaven head, walked humbly behind the priests, holding reverently in his arms a statue of Anubis, the Egyptian monkey god.
The divine invasion swelled from year to year. From southern Italy came the worship of Pythagoras—vegetarianism and reincarnation. From Hierapolis came Atargatis, known to the Romans as dea Syria, “the Syrian goddess,” Aziz the “Zeus of Doliche,” and other strange gods; their worship was spread by Syrian merchants and slaves; and at last a young priest of a Syrian Baal ascended the throne as Elagabalus—worshiper of the god of the sun. From hostile Parthia came the cult of another sun-god, Mithras; its devotees were enlisted as soldiers in the great cosmic war of Light against Darkness, of Good against Evil; it was a virile faith that won men rather than women, and pleased the Roman legions stationed on distant frontiers where they could hardly hear the voices of their native gods. From Judea came Yahweh, an uncompromising monotheist who commanded the most difficult life of piety and regulation, but gave his followers a moral code and courage that supported them well in tribulation, and clothed with a certain nobility the life of the humblest poor. Among the Roman Jews who prayed to him were some, as yet obscurely distinguished from the rest, who worshiped his incarnate and resurrected son.
* * *
I Sometimes, in the first century, girls or illegitimate children were exposed, usually at the base of the Columna Lactaria—so named because the state provided wet nurses to feed and save the infants found there.10 The abandonment of unwanted babies, however, is a custom to be found in all but the most uncivilized societies.
II In 1937 the population of Rome was 1,178,000.
III They supported Caesar consistently and were in turn protected by him. Augustus followed suit; but Tiberius, hostile to all foreign faiths, conscripted 4000 of them for almost suicidal soldiering in Sardinia, and expelled the rest from Rome (A.D. 19).16 Twelve years later, convinced that he had been misled in this matter by Sejanus, he withdrew his edict and ordered that the Jews should be unmolested in the practice of their religion and the pursuit of their customs.17 Caligula protected them in Rome and oppressed them abroad. Claudius exiled some because of riots, but by a general edict (42) confirmed the right of the Jews throughout the Empire to live by their own laws. In 94 Domitian banished the Jews of Rome to the valley of Egeria; in 96 Nerva brought them back, restored their civic rights, and allowed them a generation of peace.
IV Toys and games were much as today. Roman children played hopscotch, tug-of-war, pitch and toss, blindman’s buff, hide-and-seek; and with dolls, hoops, skipping ropes, hobbyhorses, and kites. Roman youth played five distinguishable games of ball. One resembled our football, except that (or in that) it was played rather with arms and hands than with legs and feet.29
V Apicius squandered a huge fortune in extravagant living; then, being reduced to 10,000,000 sesterces ($1,500,000), he committed suicide.89 Two hundred years later a classic of gastronomy—De re coquinaria—was attributed to him by a device permitted in antiquity.
CHAPTER XVIII
Roman LawI
146 B.C..-A.D. 192
I. THE GREAT JURISTS
LAW was the most characteristic and lasting expression of the Roman spirit. As Greece stands in history for freedom, so Rome stands for order; and as Greece bequeathed democracy and philosophy as the foundations of individual liberty, so Rome has left us its laws, and its traditions of administration, as the bases of social order. To unite these diverse legacies, to attune their stimulating opposition into harmony, is the elemental task of statesmanship.
Since law is the essence of Roman history it has been impossible to keep them separate, and this chapter can only be a structural and synoptic supplement to preceding and subsequent details. The Roman constitution was like the British—no set of permanently binding rules, but a stream of precedent giving direction without preventing change. As wealth increased, and life became more complex, new legislation issued from assemblies, Senate, magistrates, and princes; the body of the law grew as rapidly as the Empire and reached out to ever new frontiers. The education of lawyers, the guidance of judges, and the protection of the citizen from illegal judgments demanded the organization and formulation of the law into some orderly and accessible form. Amid the turmoil of the Gracchan and Marian revolution Publius Mucius Scaevola (consul, 133 B.C..) and his son Quintus (consul, 95 B.C..) labored to reduce the laws of Rome to an intelligible system. Cicero, pupil of another Quintus Mucius Scaevola (consul, 117 B.C.), wrote eloquently on the philosophy of law, and constructed an ideal code designed to preserve the fortune that he had gained and the faith that he had lost. The contradictory enactments of Marius and Sulla, the unprecedented powers of Pompey, the revolutionary legislation of Caesar, and the new constitution of Augustus created fresh problems for minds that struggled to make a logic of the law; and the brilliant jurist Antistius Labeo confounded confusion by declaring the decrees of Caesar and Augustus void, as the expression of usurped and illegal authority. Not till the Principate had established itself, first by the use of force and then by the force of use, could the new legislation win acceptance in the minds of men as well as in the courts of power. To the second and third centuries of our era belongs the honor of giving Roman law its final formulation in the West—an achievement comparable to the formulation of science and philosophy in Greece.
Here, too, Caesar had set the goal; but the actual work did not begin till Hadrian (A.D. 117). This best educated of the emperors gathered about him a corps of jurists as his Privy Council, and commissioned them to replace the variable annual edicts of the praetors with a Perpetual Edict to be observed by all future judges in Italy. The Greeks had produced since Solon no masterpiece of jurisprudence, and never a codified system of law; but the Greek cities of Asia and Italy had developed excellent municipal codes. The much-traveled Hadrian knew these cities well and was perhaps inspired by their constitutions to improve and co-ordinate the laws of Rome. Under his successors, the Antonines, the work of codification continued, and the half-official repute enjoyed by the Stoic philosophy permitted a profound Greek influence upon Roman law. The Stoics declared that law should accord with morality, and that guilt lay in the intention of the deed, not in the results. Antoninus, a product of the Stoic school, decreed that cases of doubt should be resolved in favor of the accused, and that a man should be held innocent until proved guilty1—two supreme principles of civilized law.
Favored by imperial patronage, the science of jurisprudence nurtured a succession of geniuses. Salvius Julianus, a Roman of African birth, showed so much learning and industry as quaestor Augusti, or legal adviser to the emperor, that the Senate voted him double the usual salary of that office. His responsa were a
cclaimed for their logic and clarity; his Digesta presented a systematic arrangement of civil and praetorian law; it was he who, as the leading member of Hadrian’s Council, formulated the Praetorian Perpetual Edict. Another jurist is known to us only by his first name, Gaius; his famous Institutiones was discovered by Niebuhr in 1816 on a faded palimpsest overwritten with some essays by Saint Jerome; it is now our fullest authority for pre-Justinian Roman law. It was issued (ca. A.D. 161) not as a creative work but as an elementary manual for students; if we find it a masterpiece of orderly exposition, we may imagine the intellectual stature of the men whose lost treatises it summarized. Sixty years later Papinian, Paulus, and Ulpian brought Roman jurisprudence to its height; while the administration of the law fell a victim to violence and chaos, they gave it a rational formulation and consistency. After them the great science sank in the general ruin.
II. THE SOURCES OF THE LAW
As the terminology of science and philosophy comes mostly from the Greek, betraying their source, so the language of the law comes mostly from the Latin. Law in general was ius, justice or right; lex meant a specific law.II Jurisprudence—wisdom in the law—was defined in the Digest of Justinian (A.D. 533) as both a science and an art: the “science of the just and the unjust,” and the “art [i.e., administration] of the good and the equitable.”2 lus included unwritten law, or custom, as well as written law. The latter was composed of ius civile—the “law of [Roman] citizens”—and ius gentium—“the law of the nations.” Civil law was “public law” when it related to the state or the official worship, and “private law” when it dealt with the legal interrelations of the citizens.
Roman law as a whole flowed from five sources. 1. Under the Republic the ultimate source of law was the will of the citizens, expressed as leges in the Curial and Centurial Assemblies, and as plebiscita (“decided by the plebs”) in the Tribal Assembly. The Senate acknowledged leges only when they had been proposed to the assemblies with the proper formalities and by a magistrate of Senatorial rank. When Senate and assembly agreed in passing a measure, it was proclaimed in the name of Senatus Populusque Romanus.
2. The Senate itself, in theory, had no lawmaking power under the Republic; its senatusconsulta were, formally, recommendations to the magistrates; gradually they became directives, then imperatives, until in the later Republic and under the Empire they took on the force of laws. Altogether the laws passed by the assemblies or the Senate were so few in the course of six centuries as to astonish one accustomed to the legislative flux of modern states.
3. The need for minor or more specific laws was met by the edicta of the municipal officials. Each new urban praetor (our “chief city magistrate”) issued an edictum praetorium, announced by a herald in the Forum and inscribed upon a wall, and stating the legal principles on which the praetor proposed to act and judge during his year’s term. Similar edicts could be put forth by circuit judges (praetores peregrini) and provincial praetors. Through their power of imperium, or rule, the praetors were allowed not only to interpret existing laws, but to make new ones. In this way Roman law combined the stability of its basic legislation with the flexibility of praetorian judgments. When a law or clause was carried down from one praetorian edict to the next for many years, it became a definite part of the ius honorarium; by the time of Cicero this “law of the offices” had displaced the Twelve Tables as the main text of legal instruction in Rome. Nevertheless, a praetor often reversed the decisions, and sometimes contradicted the principles, of a predecessor, so that uncertainties of law and arbitrariness of judgment were added to the abuses natural in every judicial system operated by men. It was to end this uncertainty that Hadrian instructed Julianus to unify all preceding ius honorarium in a Perpetual Edict alterable only by the emperor.
4. The constitutiones principum, or statutes of the princes, became themselves in the second century a varied source of law. They took four forms. (a) The prince issued edicta by virtue of his imperium as an official of the city; these were valid for the whole Empire, but apparently lapsed after his death. (b) His decreta as a judge, like those of other magistrates, had the force of law. (c) Imperial rescripta were his answers to inquiries. Usually they were epistulae—letters—or subscriptiones, brief replies “written under” a question or petition. The wise and pithy letters in which Trajan answered the requests of governmental appointees for instruction were incorporated into the laws of the Empire and kept their validity long after his death, (d) The mandata of the emperors were their directives to officials; in the course of time these came to constitute a detailed code of administrative law.
5. Under certain circumstances law could be created by the responsa prudentium. It must have been a pleasant sight when learned jurists sat in chairs in the open Forum (or, in later decades, in their homes), and gave legal opinions to all who asked, taking their chances on some indirect remuneration. Often their advice was solicited by lawyers or municipal judges. Like the great rabbis of the Jews they reconciled contradictions, drew subtle distinctions, interpreted and adjusted the ancient law to the needs of life or the exigencies of politics. Their written replies, by unwritten custom, had an authority only less than the law’s. Augustus gave such opinions full legal force on two conditions; that the jurist should have received from the Emperor the ius respondendi, or right of giving legal opinions; and that the reply should be sent under seal to the judge trying the case in point. By the time of Justinian these responsa had become a vast school and literature of law, the fountain and foundation of his culminating Digest and Code.
III. THE LAW OF PERSONS
“All law,” says the precise Gaius, “pertains to persons, to property, or to procedure.”3 The word persona had signified an actor’s mask; later it was applied to the part played by a man in life; finally it came to mean the man himself—as if to say that we can never know a man, but only the parts he plays, the mask or masks that he wears.
The first person in Roman law was the citizen. He was defined as anyone who had been accepted into a Roman tribe by birth, adoption, emancipation, or governmental grant. Within this franchise were three grades: (1) full citizens, who enjoyed the fourfold right of voting (ius suffragii), of holding office (ius honorum), of marriage with a freeborn person (ius connubii), and of engaging in commercial contracts protected by Roman law (ius commercii); (2) “citizens without suffrage,” who had the rights of marriage and contract, but not of voting or office; and (3) freedmen, who had the rights of voting and contract, but not of marriage or office. The full citizen had, furthermore, certain exclusive rights in private law: the power of the father over his children (patria potestas), of the husband over his wife (manus), of an owner over his property, including his slaves (dominium), and of a freeman over another by contract (mancipium). A kind of potential citizenship, called Latinitas or ius Latii, was conferred by Rome upon the free inhabitants of favored towns and colonies, whereby they acquired the right of contract, but not of intermarriage, with Romans, and their magistrates received full Roman citizenship upon completing their terms of office. Each city of the Empire had its own citizens and conditions of citizenship; and by a unique tolerance a man might be a citizen—and enjoy the civic rights—of several cities at once. The most precious privilege of a Roman citizen was the safeguarding of his person, property, and rights by the law, and his immunity from torture or violence in the trying of his case. It was the glory of Roman law that it protected the individual against the state.
The second person in Roman law was the father. The patria potestas had been weakened by the spread of law into areas formerly governed by custom; but we may judge its surviving force from the fact that when Aulus Fulvius set out to join Catiline’s army, his father called him back and put him to death. In general, however, the power of the father declined as that of the government rose; democracy entered the family when it left the state. In the early Republic the fathers had been the state; the family heads formed the Curial Assembly, and the clan heads probably cons
tituted the Senate. Rule through family and clan diminished as population became more abundant and diverse, and life more mobile, commercial, and complex; kinship, status, and custom were replaced by contract and law.4 Children won greater freedom from their parents, wives from their husbands, individuals from their groups. Trajan compelled a father to emancipate a son whom he had maltreated; Hadrian took from the father the right of life and death over his household and transferred it to the courts; Antoninus forbade a father to sell his children into slavery.5 Custom had long since reduced the use of these old powers to rare occurrences. Law tends to lag behind moral development, not because law cannot learn, but because experience has shown the wisdom of testing new ways in practice before congealing them into law.
The Roman woman gained new rights as the man lost old ones; but she was clever enough to disguise her freedom under continuing legal disabilities. The law of the Republic assumed that she was never sui iuris, “of her own right,” but always dependent upon some male guardian; “according to our ancestors,” said Gaius, “even women of mature age must be kept in tutelage because of the lightness of their minds.”6 In the later Republic and under the Empire this legal dependence was largely annulled by feminine charms and willfulness, abetted by male susceptibility and affection. From Cato the Elder to Commodus Roman society, legally patriarchal, was ruled by women, with all the graceful mastery of Renaissance Italian or Bourbon French salons. The laws of Augustus made some obeisance to the facts by releasing from tutela any woman who had borne three legitimate children.7 Hadrian decreed that women might dispose of their property as they liked, provided they obtained the consent of their guardians; but actual procedure soon dispensed with this consent. By the end of the second century all compulsory tutelage was ended in law for free women over twenty-five.