Trials were marked by a freedom of speech and action seldom known in modern courts. Several lawyers might appear on each side; some specialized in preparing the evidence, some in presenting it. The proceedings were recorded by various clerks (notarii, actuarii, scribae), and were sometimes taken down in shorthand; Martial says of certain scribes, “However fast the words may run, their hands are quicker still.”41 Plutarch tells how stenographers took down the speeches of Cicero, often to his discomfort. Witnesses were dealt with according to time-honored precedents. Says the exemplary Quintilian:
In the examination of a witness the first essential is to know his type. For a timid witness may be terrorized, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness must be dismissed at once as malicious and obstinate; or ... if his past life admits of criticism, his credit may be overthrown by the scandalous charges that can be brought against him.42
Almost any kind of argument might be made by the advocate. He could show the court pictures of the alleged crime, painted on canvas or wood; he could hold a child in his arms while arguing a point; he could bare the scars of an accused soldier or the wounds of a client. Defenses were contrived against these weapons. Quintilian tells how one attorney, when his opponent illustrated a summation by bringing his client’s children into court, threw dice among them; the children scrambled for the tesserae and ruined a peroration.43 The slaves of either party to a suit might be tortured to elicit evidence, but such evidence was not admissible against their owners. Hadrian decreed that slaves should be tortured for evidence only as a last resort and under the strictest regulations, and he warned the courts that evidence secured by torture could never be trusted. Legal torture nevertheless persisted, and was extended in the third century to freemen.44 The jury voted by depositing marked tablets in an urn; a majority sufficed for a decision. In most cases the loser might appeal to a higher court, and finally, if he could afford it, to the emperor.
Penalties were fixed by law rather than left to the discretion of the judge. They varied with the rank of the offender, being severest for the slave; he might be crucified, the citizen might not; and no Roman citizen, as every reader of the Acts of the Apostles knows, could be scourged, tortured, or put to death over his appeal to the emperor. Different penalties were laid upon honestiores and humiliores for the same crime; they varied also according as the offender was freeborn or freeman, solvent or bankrupt, soldier or civilian. The simplest punishment was a fine. Since the value of currency changed more rapidly than the penalties named in the law, certain anomalies ensued. The Twelve Tables exacted a fine of twenty-five asses (originally twenty-five pounds of copper) for striking a freeman; when rising prices had lowered the as to six cents Lucius Veratius went about striking freemen in the face, followed by a slave who counted out twenty-five asses to each victim.45 Some offenses resulted in infamia (“speechlessness”), chiefly the inability to appear, or be represented by another, in an action at law. A more stringent punishment was loss of civic rights (capitis deminutio), which took the progressive forms of incapacity to inherit, deportation, and enslavement. Deportation was the harshest form of exile: the condemned man was put in chains, confined in some inhospitable place, and deprived of all his property. Exilium was milder in allowing the victim to live in freedom wherever he pleased outside of Italy; relegatio, as in the case of Ovid, involved no confiscation, but compelled the outcast to stay in a specified town, usually far from Rome. Imprisonment was seldom used as a permanent punishment, but men might be condemned to menial labor on public works, or in the mines, or in the quarries of the state. Under the Republic a freeman sentenced to death could escape the penalty by leaving Rome or Italy; under the Empire the death penalty was imposed with increasing frequency and ruthlessness. Prisoners of war, and in some cases other condemned men, might be thrown into the Career Tullianum, to die of starvation, rodents, and lice in underground darkness and irremovable filth.46 There Jugurtha died, and Simon Ben-Giora, heroic defender of Jerusalem against Titus. There, said tradition, Peter and Paul had languished before their martyrdom, and had written their last addresses to the young Christian world.
VI. THE LAW OF THE NATIONS
The most difficult problem of Roman law was to adjust itself as an intelligent master to the varied codes and customs of the lands that Roman arms or diplomacy had won. Many of these states were older than Rome; what they had lost in military courage they made up in proud traditions and a jealous fondness for their peculiar ways. Rome met the situation ably. A praetor peregrinus was appointed at first for the foreigners in Rome, then for Italy, then for the provinces; and power was given him to make some viable union between Roman and local law. The annual edicts of this praetor and the provincial governors and aediles gradually created the ius gentium by which the Empire was ruled.
This “Law of the Nations” was not an international law—not a body of commitments accepted by the generality of states as governing their interrelations. In a sense not much more tenuous than today there was in antiquity an international law, insofar as certain common customs were honored in peace and war—the mutual safeguarding of international merchants and diplomats, the granting of truce for the burial of the dead, abstention from the use of poisoned arrows, etc. The jurists of Rome, by a patriotic fiction, described the ius gentium as law common to all nations. But they were too modest about Rome’s part in it. Actually it was local law adapted to Roman sovereignty, and designed to govern the peoples of Italy and the provinces without giving them Roman citizenship and the other rights of the ius civile.
By a corresponding fiction the philosophers attempted to identify the Law of the Nations with the “Law of Nature.” The Stoics defined the latter as a moral code implanted in man by “natural reason.” Nature, they held, was a system of reason, a logic and order in all things; this order, spontaneously developing in society, and coming to consciousness in man, was natural law. Cicero phrased the fancy in a famous passage:
True law is right reason in agreement with nature, world-wide in scope, unchanging, everlasting. . . . We may not oppose or alter that law, we cannot abolish it, we cannot be freed from its obligations by any legislature, and we need not look outside ourselves for an expounder of it. This law does not differ for Rome and for Athens, for the present and for the future; ... it is and will be valid for all nations and all times. ... He who disobeys it denies himself and his own nature.47
It was a perfect statement of an ideal that grew in force as Stoicism reached the throne in the Antonines. Ulpian developed it into the far-reaching principle that class distinctions and privileges are accidental and artificial; and from this it was but a step to the Christian conception of all men as fundamentally equal. But when Gaius defined the ius gentium as simply “the law which natural reason has established among all mankind,”48 he was mistaking Roman arms for Divine Providence. Roman law was the logic and economy of force; the great codes of ius civile and ius gentium were the rules by which a wise conqueror gave order, regularity, and time’s sanctity to a sovereignty based upon the legions’ strength. They were natural, but only in the sense that it is natural for the strong to use and abuse the weak.
Nevertheless, there is something noble in this imposing architecture of government called Roman law. Since the victor must rule, it is a boon that the rules of his mastery should be clearly expressed; in this sense law is the consistency of power. It was natural that the Romans should create the greatest system of law in history: they loved order and had the means to enforce it; upon the chaos of a hundred diverse nations they laid an imperfect but sublime authority and peace. Other states had had laws, and legislators like Hammurabi and Solon had issued small bodies of humane legislation; but no people had yet achieved that immense co-ordination, unification, and codification which occupied the highest legal minds of Rome from the Scaevolas to Justinian.
The flexibility of the ius gentium facilitated the transmission of Roman law to m
edieval and modern states. It was a happy accident that while the chaos of barbarian invasion was mutilating the legal heritage in the West, the Code, Digest, and Institutes of Justinian were collected and formulated in Constantinople, in the comparative security and continuity of the Empire in the East. Through those labors, and a hundred lesser channels, and the silent tenacity of useful ways, Roman law entered into the canon law of the medieval Church, inspired the thinkers of the Renaissance, and became the basic law of Italy, Spain, France, Germany, Hungary, Bohemia, Poland, even—within the British Empire—of Scotland, Quebec, Ceylon, and South Africa. English law itself, the only legal edifice of comparable scope, took its rules of equity, admiralty, guardianship, and bequests from Roman canon law. Greek science and philosophy, Judeo-Greek Christianity, Greco-Roman democracy, Roman law—these are our supreme inheritance from the ancient world.
* * *
I This chapter will be of no use to lawyers, and of no interest to others.
II Cf. French droit and loi, German Recht and Gesetz.
III The mortgagor was in law bound (nexus) to the mortgagee; but the obscure term nexum was apparently applied to any solemnly sworn obligation.
CHAPTER XIX
The Philosopher Kings
A.D. 96-180
I. NERVA
WITH the assassination of Domitian the principle of heredity disappeared for a century from Roman monarchy. The Senate had never recognized inheritance as a source of sovereignty; now, after 123 years of submission, it reasserted its authority; and as in Rome’s beginnings it had chosen the king, now it named one of its own members princeps and imperator. It was an act of courage intelligible only when we remember that the vigor of the Flavian family was exhausted in that same generation which had seen the vitality of the Senate renewed by Italian and provincial blood.
Marcus Cocceius Nerva was sixty-six when supremacy surprised him. The colossal Nerva of the Vatican shows a handsome and virile face; no one would suppose that this was a respectable jurist with a bad stomach, a mild and amiable poet who had once been hailed as “the Tibullus of our time.”1 Perhaps the Senate had chosen him for his gray harmlessness. He consulted it on all policies, and kept his pledge never to be the cause of death to any of its members. He recalled Domitian’s exiles, restored their property, and moderated their revenge. He distributed 60,000,000 sesterces’ worth of lands among the poor, and established the alimenta—a state fund to encourage and finance parentage among the peasantry. He annulled many taxes, lowered the inheritance dues, and freed the Jews from the tribute that Vespasian had laid upon them. At the same time he repaired the finances of the state by economy in his household and his government. With reason he thought that he had been just to all classes, and remarked that “I have done nothing that could prevent me from laying down the imperial office and returning to private life in safety.”2 But a year after his accession the Praetorian Guard, which had been forestalled in his nomination and resented his economy, besieged his palace, demanded the surrender of Domitian’s assassins, and killed several of Nerva’s councilors. He offered his throat to the swords of the soldiers, but they spared him. Humiliated, he wished to abdicate, but his friends persuaded him, instead, to return to Augustus’ example and adopt as his son and successor a man acceptable to the Senate and capable of ruling not only the Empire, but the Guard as well. The greatest debt that Rome owed Nerva was that he chose Marcus Ulpius Traianus to succeed him. Three months later, after a reign of sixteen months, he passed away (98).
The principle of adoption thus accidentally restored meant that each emperor, as he felt his powers decline, would associate with himself in rule the ablest and fittest man he could find, so that when death came there would be neither the absurdity of a Praetorian elevation, nor the risk of a natural but worthless heir, nor a civil war among competitors for the throne. It was a lucky chance that no son was born to Trajan, Hadrian, or Antoninus Pius, and that each could apply the adoptive plan without slighting his offspring or his own parental love. While the principle was maintained it gave Rome “the finest succession of good and great sovereigns the world has ever had.”3
II. TRAJAN
Trajan received word of his accession while he was in charge of a Roman army in Cologne. It was characteristic of him that he went on with his work at the frontier and postponed his coming to Rome for nearly two years. He had been born in Spain of an Italian family long settled there; in him and in Hadrian Roman Spain arrived at political hegemony, as it had reached literary leadership in Seneca, Lucan, and Martial. He was the first in a long line of generals whose provincial birth and training seemed to give them the will-to-life that had gone from the native Roman stock. That Rome made no protest against this enthronement of a provincial was in itself an event and omen in Roman history.
Trajan never ceased to be a general. His carriage was military, his presence commanding; his features were undistinguished but strong. Tall and robust, he was wont to march on foot with his troops and ford with full armament the hundred rivers they had to cross. His courage showed a stoic impartiality between life and death. Told that Licinius Sura was plotting against him, he went to Sura’s house for dinner, ate without scrutiny whatever food was offered him, and had himself shaved by Sura’s barber.4 He was not in any technical sense a philosopher. He used to take Dio Chrysostom, the “golden-mouthed” rhetor, with him in his chariot to discourse to him on philosophy, but he confessed that he could not understand a word of Dio’s talk5—the worse for philosophy. His mind was clear and direct; he uttered an amazing minimum of nonsense for a man. He was vain, like all human beings, but completely unassuming; he took no advantage of his office, joined his friends at table and the hunt, drank with them copiously, and indulged in occasional pederasty as if out of deference to the customs of his time. Rome thought it worthy of praise that he never disturbed his wife Plotina by making love to another woman.
When, in the forty-second year of his age, Trajan reached Rome, he was at the height of his faculties. His simplicity, geniality, and moderation readily won a people so lately acquainted with tyranny. The younger Pliny was chosen by the Senate to pronounce the “panegyric” of greeting. About the same time Dio Chrysostom delivered before the Emperor a discourse on the duties of a monarch as viewed by the Stoic philosophy. Both Pliny and Dio distinguished between dominatio and principatus: the prince was to be not lord of the state but its first servant, the executive delegate of the people, chosen through their representatives, the senators. Imperaturus omnibus elegi debet ex omnibus, said Pliny: “He who is to command all should be elected by all.”6 The general listened courteously.
Such fair beginnings were not new in history; what astonished Rome was that Trajan fulfilled their promise abundantly. He gave to his aides or associates the villas in which his predecessors had stayed for a few weeks in the year; “he regarded nothing as his own,” said Pliny, “unless his friends possessed it”;7 as for himself he lived as simply as Vespasian. He asked the Senate’s opinion on all matters of moment, and discovered that he might wield nearly absolute power if he never used absolute speech. The Senate was willing to let him rule if he would observe the forms that maintained its dignity and prestige; like the rest of Rome, it now loved security too much to be capable of freedom. Perhaps also it was pleased to find Trajan a conservative, who had no intention of mulcting the rich to appease the poor.
Trajan was an able and tireless administrator, a sound financier, a just judge. To him the Digest of Justinian ascribes the principle, “It is better that the guilty should remain unpunished than that the innocent should be condemned.”8 By careful supervision of expenditures (and some lucrative conquests) he was able to complete extensive public works without increasing taxation; on the contrary, he lowered taxes and published a budget to expose the revenues and outlays of the government to examination and criticism. He required from the senators who enjoyed his comradeship an administrative devotion almost as meticulous as his own. The patricians entere
d the bureaucracy and worked as well as played; Trajan’s extant correspondence with them suggests how carefully they labored under his watchful and inspiring leadership. Many of the Eastern cities had mismanaged their finances to the point of bankruptcy, and Trajan sent cur at ores like the younger Pliny to help and check them. The procedure weakened municipal independence and institutions, but it was unavoidable; self-government, by extravagance and incompetence, had brought its own end.
Nurtured on war, the Emperor was a frank imperialist who preferred order to liberty and power to peace. Hardly a year after his arrival in Rome he set out for the conquest of Dacia. Roughly corresponding to the Rumania of 1940, Dacia plunged like a fist into the heart of Germany, and would therefore be of great military value in the struggle that Trajan foresaw between the Germans and Italy. Its annexation would give Rome control of the road that ran down the Save to the Danube and thence to Byzantium—an invaluable land route to the East. Besides, Dacia had gold mines. In a campaign brilliantly planned and swiftly executed, Trajan led his legions through all obstacles and resistance to the Dacian capital, Sarmizegetusa, and forced its surrender. A Roman sculptor has left us an impressive portrait of the Dacian king Decebalus—a face noble with strength and character. Trajan reinstated him as a client king and returned to Rome (102); but Decebalus soon broke his agreements and resumed his independent sway. Trajan marched his army back into Dacia (105), bridged the Danube with a structure that was one of the engineering marvels of the century, and again stormed the Dacian capital. Decebalus was killed, a strong garrison was left to hold Sarmizegetusa, and Trajan went back to Rome to celebrate his victory with 10,000 gladiators (probably war captives) in 123 days of public games. Dacia became a Roman province, received Roman colonists, married them, and corrupted the Latin language in its own Rumanian way. The gold mines of Transylvania were put under the direction of an imperial procurator and soon paid for the material cost of the war. To reimburse himself for his labors Trajan took out of Dacia a million pounds of silver and half a million pounds of gold—the last substantial booty that the legions would win for Roman sloth.