No More Learning

But there are not wanting indications that the Phoenicians already found it worth while to manifest that
jealousy which is usually associated with naval domination, if not in reference to their Latin allies, at any rate in refer ence to their Etruscan confederates, whose naval power was greater. The statement as to the Carthaginians having prohibited the sending forth of an Etruscan colony to the Canary islands, whether true or false, reveals the existence of a rivalry of interests in the matter.
Modern character of Italian culture.
CHAPTER XI
LAW AND JUSTICE
HISTORY, as such, cannot reproduce the life of a people in
the infinite variety of its details; it must be with content
exhibiting the development of that life as a whole. The doings and dealings, the thoughts and imaginings of the individual, however strongly they may reflect the character istics of the national mind, form no part of history. Never theless it seems necessary to make some attempt to indicate —only in the most general outlines-the features of individual life in the case of those earlier ages which are, so far as history is concerned, all but lost in oblivion; for it is in this field of research alone that we acquire some idea of the breadth of the gulf which separates our modes of thinking and feeling from those of the civilized nations of antiquity. Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difliculty we recognize to have once been green. Instead of threading that dreary maze and attempting to classify those shreds of humanity, the Chones and Oenotrians, the Siculi and the Pelasgi, it will be more to the purpose to inquire how the real life of the people in ancient Italy expressed itself in their law, and their ideal life in religion; how they farmed and how they traded; and whence the several nations derived the art of writing and other elements of culture. Scanty as our
188 LAW AND JUSTICE BOOK 1
cnnr. x1 LAW AND JUSTICE
189
knowledge in this respect is in reference to the Roman people and still more so in reference to the Sabellians and Etruscans, even the slight and very defective information which is attainable will enable the mind to associate with these names some more or less clear glimpse of the once living reality. The chief result of such a view (as we may here mention by way of anticipation) may be summed up in saying that fewer traces comparatively of the primitive
state of things have been preserved in the case of the Italians, and of the Romans in particular, than in the case of any other Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity of women to hold property, the acquiring of wives by purchase, the primitive form of burial, blood-revenge, the clan-constitution conflicting with
the authority of the community, a vivid natural symbolism —all these, and numerous phenomena of a kindred character, must be presumed to have lain at the foundation of civilization in Italy as well as elsewhere; but at the epoch when that civilization comes clearly into view they have already wholly disappeared, and only the comparison of kindred races informs us that such things once existed. In this respect Italian history begins at a far later stage of civilization than e. g. the Greek or the Germanic, and from the first it exhibits a comparatively modern character.
The laws of most of the Italian stocks are lost in oblivion. Some information regarding the law of the Latin land alone has survived in . Roman tradition.
All jurisdiction was vested in the community or, in other Jurisdic
words, in the king, who administered justice or “ command ” (fas) on the “days of utterance ” (dies fasti) at the “judg ment platform ” (tribunal) in the place of public assembly, sitting on the “chariot-seat” (sella :uruh's);1 by his side
1 This "chariot-seat"—philological1y no other explanation can well be given (comp. Servius ad Aen. i. 16)—is most simply explained by supposing that the king alone was entitled to ride in a chariot within the city (p. 83)—whence originated the privilege subsequently accorded to the
tion.
r90 LAW AND JUSTICE BOOK I
stood his “ messengers ” (lictores), and before him the person accused or the “parties” (ref). No doubt in the case of slaves the decision lay primarily with the master, and in the case of women with the father, husband, or nearest male relative (p. 73); but slaves and women were not primarily reckoned as members of the community. Over sons and grandsons who were in patestate the power of the
pater familias subsisted concurrently with the royal juris diction; that power, however, was not a jurisdiction in the proper sense of the term, but simply a consequence of the father’s inherent right of property in his children. We find no traces of any jurisdiction appertaining to the clans as such, or of any judicature at all that did not derive its authority from the king. As regards the right of self redress and in particular the avenging of blood, we still find perhaps in legends an echo of the original principle that a murderer, or any one who should illegally protect a murderer, might justifiably be slain by the kinsmen of the person murdered ; but these very legends characterize this principle as objectionable,1 and from their statements blood revenge would appear to have been very early suppressed in Rome through the energetic assertion of the authority of the community. In like manner we perceive in the earliest Roman law no trace of that influence which under the oldest Germanic institutions the comrades of the accused
chief magistrate on solemn occasions-and that originally, so long as there was no elevated tribunal, he gave judgment, at the comitium or wherever else he wished, from the chariot-seat.
1 The story of the death of king Tatius, as given by Plutarch (Ram. 23, 24), viz. that kinsmen of Tatius had killed envoys from Laurentum ; that Tatius had refused the complaint of the kinsmen of the slain for redress ; that they then put Tatius to death ; that Romulus acquitted the murderers of Tatius, on the ground that murder had been expiated by murder ; but that, in consequence of the penal judgments of the gods that simultaneously fell upon Rome and Laurentum, the perpetrators of both murders were in the sequel subjected to righteous punishment-this story looks quite like a historical version of the abolition of blood-revenge, just as the introductior of the provocatia lies at the foundation of the myth of the Horatii. Th: versions of the same story that occur elsewhere certainly present con siderable variations, but they seem to be confused or dressed up.
CHAP. xr LAW AND JUSTICE 19!
and the people present were entitled to exercise over the pronouncing of judgment; nor do we find in the former any evidence of the usage so frequent in the latter, by which the mere will and power to maintain a claim with arms in hand were treated as judicially necessary or at any rate admissible.
Judicial procedure took the form of a public or a private Crimes. process, according as the king interposed of his own motion
or only when appealed to by the injured party. The
former course was taken only in cases which involved a
breach of the public peace. First of all, therefore, it was applicable in the case of public treason or communion with
the public enemy (prodz'tzb), and in that of violent rebellion
against the magistracy (perduellia). But the public peace
was also broken by the foul murderer (parrz'cida), the sodomite, the violator of a maiden’s or matron’s chastity,
the incendiary, the false witness, by those, moreover, who
with evil spells conjured away the harvest, or who without
due title cut the corn by night in the field entrusted to the protection of the gods and‘of the people; all of these were therefore dealt with as though they had been guilty of high treason. The king opened and conducted the process, and
sentence after conferring with the senators whom he had called in to advise with him. He was at liberty, however, after he had initiated the process, to commit the further handling and the adjudication of the matter to deputies who were, as a rule, taken from the senate. The later extraordinary deputies, the two men for adjudicating on rebellion (duoviriperduellianis) and the later standing deputies the “trackers of murder” (quaesturc:
parrit-idii), whose primary duty was to search out and arrest murderers, and who therefore exercised in some measure police functions, do not belong to the regal period, but may probably have sprung out of, or been suggested by, certain of its institutions. Imprisonment while the case was
pronounced
Punish ment of offences against order.
Law of private offences.
r92 LAW AND JUSTICE BOOK 1
undergoing investigation was the rule; the accused might, however, be released on bail. Torture to compel confession was only applied to slaves. Every one convicted of having broken the public peace expiated his offence with his life. The modes of inflicting capital punishment were various: the false witness, for example, was hurled from the strong hold-rock; the harvest-thief was hanged; the incendiary was burnt. The king could not grant pardon, for that power was vested in the community alone; but the king might grant or refuse to the condemned permission to appeal for mercy (provocatio). In addition to this, the law recognized an intervention of the gods in favour of the condemned criminal. He who had made a genuflection before the priest of Jupiter might not be scourged on the same day ; any one under fetters who set foot in his house had to be released from his bonds; and the life of a criminal was spared, if on his way to execution he accidentally met one
of the sacred virgins of Vesta.
The king inflicted at his discretion fines payable to the
state for trespasses against order and for police offences; they consisted in a definite number (hence the name multa) of cattle or sheep. It was in his power also to pronounce sentence of scourging.
In all other cases, where the individual alone was in jured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself
before the king. When both parties had appeared and the plaintiff had orally stated his demand, while the defendant had in similar fashion refused to comply with the king might either investigate the cause himself or have dis posed of by deputy acting in his name. The regular form of satisfaction for such an injury was compromise arranged between the injurer and the injured; the state
a
a
it,
it
CHAP- xr LAW AND JUSTICE 193
only interfered supplementarily, when the aggressor did not satisfy the party aggrieved by an adequate expiation (poena), when any one had his property detained or his just demand was not fulfilled.
Under what circumstances during this epoch theft was regarded as at all expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was by the judge assigned as a bondsman to the person from whom he had stolen.
Then.
In cases of damage (im'uria) to person or to property, lnjurlel. where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to
accept compensation; on the other hand, any member
was lost in consequence of the maimed person could demand eye for eye and tooth for tooth.
Since the arable land among the Romans was long Property. cultivated upon the system of joint possession and was not distributed until comparatively late age, the idea of
was primarily associated not with immoveable
property
estate, but with “estate in slaves and cattle”
VOL.
r3
(familia It was not the right of the stronger that was
pemniaque).
regarded as the foundation of title to it; on the contrary, all property was considered as conferred by the community upon the individual burgess for his exclusive possession and use; and therefore was only the burgess, and such as the community accounted in this respect as equal to
burgesses, that were capable of holding property. All
1
it
if,
a
it,
a
r94 LAW AND JUSTICE loo: 1
property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and immoveable estate (from the time that the latter was regarded as private property at all), and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless it was not in the power of the father arbitrarily to deprive his children of their right of inheritance, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In
his lifetime no doubt the father might make dispositions disadvantageous to his children ; for the law was sparing of personal restrictions on the proprietor and allowed, upon the whole, every grown-up man freely to dispose of his
The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardian ship like a lunatic, was probably as ancient as the period when the arable land was first divided and thereby private property generally acquired greater importance for the commonwealth. In this way the two antagonistic principles —the unlimited right of the owner to dispose of his own,
and the preservation of the family property unbroken- were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little
recognized mortgaging; but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were its purchaser, who thereupon gave his word of honour (fidua'a) that he would not alienate the object pledged until the payment fell due, and would restore
it to his debtor when the sum advanced had been repaid.
property.
can. an LAW AND JUSTICE x95
Contracts concluded between the state and a burgess, Conn-ml. particularly the obligation given by those who became
sureties for a payment to the state (prawides, pram’es),
were valid without fiirther formality. On the other hand, contracts between private persons under ordinary circum
stances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor’s word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (mamzjlalio), and of loan A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (mam'zfare), and the buyer at the same time paid to the seller the stipulated
price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person. 1 These condi tions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser
1 The manripatio in its developed form must have been more recent than the Servian reform, as the selection of mancipable objects, which had for its aim the fixing of agricultural property, shows, and as even tradition must have assumed, for it makes Servius the inventor of the balance. But in its origin the mancipalio must be far more ancient ; for it primarily applies only to objects which are acquired by grasping with the hand, and must therefore in its earliest form have belonged to the epoch when property consisted essentially in slaves and cattle (familia pecuniague). The enumeration of those objects which had to be acquired by mann'patio, falls accordingly to be ranked as a Servian innovation; the manu'patio itself. and consequently the use also of the balance and of copper, are older. Beyond doubt manczltafio was originally the universal form of purchase, and occurred in the case of all articles even after the Servian reform ; it was only a misunderstanding of later ages which put upon the rule, that certain articles had to be transferred by manripatio, the con struction that these articles only and no others could be so transferred.
I96 LAW AND JUSTICE 300! I
had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the
of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum. 1 The repayment of the loan took place, when the
time came, with similar forms.
If a debtor to the state did not fulfil his obligations, he
was without further ceremony sold with all that he had ; the simple demand on the part of the state was suflicient to establish the debt. If on the other hand a private person informed the king of any violation of his property
or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (sacramentum) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon
‘ Viz. for the year of ten months one twelfth part of the capital (acacia), which amounts to B; per cent for the year of ten, and 10 per oent for the year of twelve, months.
obligation
(nexum)
(m'ndidae),
CHAP- XI LAW AND JUSTICE 197
the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the
, debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution “by laying on of hands” (mama im'ectio) ; the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend him self; a third person might indeed intercede for him and represent this act of violence as unwarranted (vindex), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in
the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave (p. 131). Thus the Roman community protected every man’s estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.
Protection was in like manner provided for the estate ‘Gandhi P‘
Law of in heritance.
198 LAW AND JUSTICE BOOK I
of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.
After a man’s death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship-women included-shared alike, and the widow along with her children was admitted to her pro portional share. A dispensation from the legal order of succession could only be granted by the assembly of the people ; previous to which the consent of the priests had to
be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the com pletely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.
Manumission was unknown to the law of very early times. The owner might indeed refrain from exercising his proprietary rights; but this did not cancel the existing impossibility of master and slave coming under mutual obligations; still less did it enable the slave to acquire, in relation to the community, the rights of a guest or of a burgess. Accordingly manumission must have been at first simply de facto, not de jure; and the master cannot have been debarred from the possibility of again at pleasure treating the freedman as a slave. But there was a departure from this principle in cases where the master came under obligation not merely towards the slave, but towards the community, to leave him in possession of freedom. There was no special legal form, however, for thus binding the
Manu mission.
can. x1 LAW AND JUSTICE X99
master-the best proof that there was at first no such thing as a manumission,—but those methods were employed for this object which the law otherwise presented, testament, action, or census. If the master had either declared his slave free when executing his last will in the assembly of the people, or had allowed his slave to claim freedom in his own presence before a judge or to get his name inscribed in the valuation-roll, the freedman was regarded not indeed as a burgess, but as personally free in relation to his former master and his heirs, and was accordingly looked upon at first as a client, and in later times as a plebeian
110). The emancipation of son encountered greater difli
culties than that of slave; for while the relation of master to slave was accidental and therefore capable of being dissolved at will, the father could never cease to be father. Accordingly in later times the son was obliged, in order to get free from the father, first to enter into slavery and then to be set free out of this latter state but in the period now before us no emancipation of sons can have as yet existed.
Such were the laws under which burgesses and clients Clients and lived in Rome. Between these two classes, so far as we foreigner! can see, there subsisted from the beginning complete
equality of private rights. The foreigner on the other
hand, he had not submitted to Roman patron and
thus lived as client, was beyond the pale of the law both
in person and in property. Whatever the Roman burgess
took from him was as rightfully acquired as was the shell
fish, belonging to nobody, which was picked up by the sea-shore; but the case of ground lying beyond the
Roman bounds, while the Roman burgess might take
practical possession, he could not be regarded as in legal
sense its proprietor; for the individual burgess was not
entitled to advance the bounds of the community. The
case was different in war: whatever the soldier who was
a
a in
if
a
;
a
a
(p.
200 LAW AND JUSTICE 800! I
fighting in the ranks of the levy gained, whether moveable or immoveable property, fell not to him, but to the state, and accordingly here too it depended upon the state whether it would advance or contract its bounds.
Exceptions from these general rules were created by special state-treaties, which secured certain rights to the members of foreign communities within the Roman state. In particular, the perpetual league between Rome and Latium declared all contracts between Romans and Latins to be valid in law, and at the same time instituted in their case an accelerated civil process before sworn “ recoverers ”
As, contrary to Roman usage, which in other instances committed the decision to a single judge,
these always sat in plural number and that number un even, they are probably to be conceived as a court for the cognizance of commercial dealings, composed of arbiters from both nations and an umpire. They sat in judgment at the place where the contract was entered into, and were obliged to have the process terminated at latest in ten days. The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians ; for the manafatio and the nexum were origin ally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.
Dealings with countries strictly foreign were carried on in a different fashion and by means of other forms. In very early times treaties as to commerce and legal redress must have been entered into with the Caerites and other friendly peoples, and must have formed the basis of the international private law (ius gmt‘ium), which gradually became developed in Rome alongside of the law of the land. An indication of the formation of such a law is found in the remarkable mutuum, “the exchange"
(rea'peratores).
(from
CRAP. XI LAW AND JUSTICE 80!
mufare like dziw'ziuus)—a form of loan, which was not based like the nexum upon a binding declaration of the debtor expressly emitted before witnesses, but upon the mere transit of the money from one hand to another, and which as evidently originated in dealings with foreigners as the nexum in business dealings at home. It is accordingly a significant fact that the word reappears in Sicilian Greek as poi-rev ; and with this is to be connected the reappearance of the Latin can-er in the Sicilian Kofpxapov. Since it is philologically certain that both words were originally Latin, their occurrence in the local dialect of Sicily becomes an important testimony to the frequency of the dealings of Latin traders in the island, which led to their borrowing money there and becoming liable to that imprisonment for debt, which was everywhere in the earlier systems of law the consequence of the non-repayment of a loan. Conversely, the name of the Syracusan prison, “ stone-quarries ” or Mropfar, was transferred at an early period to the enlarged Roman state-prison, the lautumiae.
We have derived our outline of these institutions mainly
from the earliest record of the Roman common law prepared of the
about half a century after the abolition of the monarchy;
and their existence in the regal period, while doubtful
haps as to particular points of detail, cannot be doubted in the main. Surveying them as a whole, we recognize the law of a far-advanced agricultural and mercantile city, marked alike by its liberality and its consistency. In its case the conventional language of symbols, such as ag. the Ger manic laws exhibit, has already quite disappeared. There is no doubt that such a symbolic language must have existed at one time among the Italians. Remarkable instances of it are to be found in the form of searching a house, wherein the searcher must, according to the Roman as well as the Germanic custom, appear without upper garment merely in his shirt; and especially in the primitive Latin formula
Roman law.
per
no2 LAW AND JUSTICE nooK 1
for declaring war, in which we meet with two symbols occurring at least also among the Celts and the Germans— the “pure herb” (Iurba para, Franconian :lzrzne c/zrua'a) as a symbol of the native soil, and the singed bloody staff as a sign of commencing war. But with a few exceptions, in which reasons of religion protected the ancient usages
to which class the confarreatz'o as well as the declaration of war by the college of Fetiales belonged —the Roman law, as we know uniformly and on principle rejects the symbol, and requires in all cases neither more nor less than the full and pure expression of will. The delivery of an article, the summons to bear witness, the conclusion of marriage, were complete as soon as the parties had in an
intelligible
manner declared their purpose; was usual,
indeed, to deliver the article into the hand of the new
owner, to pull the person summoned as witness by the
ear, to veil the bride’s head and to lead her in solemn
procession to her husband’s house; but all these primitive
practices were already, under the oldest national law of the
Romans, customs legally worthless. In way entirely
analogous to the setting aside of allegory and along with
of personification in religion, every sort of symbolism was
on principle expelled from their law. In like manner that earliest state of things presented to us by the Hellenic as well as the Germanic institutions, wherein the power of the community still contends with the authority of the smaller associations of clans or cantons that are merged in in Roman law wholly superseded there no alliance for the vindication of rights within the state, to supplement the state's imperfect aid, by mutual offence and defence; nor
there any serious trace of vengeance for bloodshed, or of the family property restricting the individual’s power of dis posal. Such institutions must probably at one time have existed among the Italians traces of them may perhaps be found in particular institutions of ritual, ag. in the expiatory
;
is
;
is
it, is
it
a
a
it
it,
cnar. xi LAW AND JUSTICE :03
goat, which the involuntary homicide was obliged to give to the nearest of kin to the slain ; but even at the earliest period of Rome which we can conceive this stage had long been transcended. The clan and the family doubtless were
not annihilated in the Roman community; but the theoretical as well as the practical omnipotence of the state in its own sphere was no more limited by them than by the freedom which the state granted and guaranteed to the burgess. The ultimate foundation of law was in all cases
the state; freedom was simply another expression for the right of citizenship in its widest sense; all property was based on express or tacit transference by the community to the individual ; a contract was valid only so far as the com munity by its representatives attested testament only so far as the community confirmed The provinces of public and private law were definitely and clearly discrimi
nated: the former having reference to crimes against the state, which immediately called for the judgment of the state and always involved capital punishment; the latter having reference to offences against fellow-burgess or guest, which were mainly disposed of in the way of com promise by expiation or satisfaction made to the party injured, and were never punished with the forfeit of life, but, at most, with the loss of freedom. The greatest liberality in the permission of commerce and the most rigorous procedure in execution went hand in hand; just as in commercial states at the present day the universal right to draw bills of exchange appears in conjunction with
a strict procedure in regard to them. The burgess and the client stood in their dealings on footing of entire equality; state-treaties conceded comprehensive equality of rights also to the guest; women were placed completely on level in point of legal capacity with men, although restricted in action; the boy had scarcely grown up when he received at once the most comprehensive powers in the
a
a
a a it it, a
a
I04 LAW AND JUSTICE Booxr
disposal of his estate, and every one who could dispose at all was as sovereign in his own sphere as was the state in public affairs. A feature eminently characteristic was the system of credit. There did not exist any credit on landed security, but instead of a debt on mortgage the step which constitutes at present the final stage in mortgage-procedure —the delivery of the property from the debtor to the creditor-took place at once. On the other hand personal credit was guaranteed in the most summary, not to say ex travagant fashion; for the lawgiver entitled the creditor to treat his insolvent debtor like a thief, and granted to him in entire legislative earnest what Shylock, half in jest, stipu lated for from his mortal enemy, guarding indeed by special clauses the point as to the cutting ofi” too much more carefully than did the Jew. The law could not have more clearly expressed its design, which was to establish at once an independent agriculture free of debt and a mercantile credit, and to suppress with stringent energy all merely nominal ownership and all breaches of fidelity. If we further take into consideration the right of settlement recognized at an early date as belonging to all the Latins (p. 132), and the validity which was likewise early pro nounced to belong to civil marriage (p. 112), we shall perceive that this state, which made the highest demands on its burgesses and carried the idea of subordinating the individual to the interest of the whole further than any state before or since has done, only did and only could do so
by itself removing the barriers to intercourse and unshackling liberty quite as much as it subjected it to restriction. In permission or in prohibition the law was always absolute. As the foreigner who had none to intercede for him was like the hunted deer, so the guest was on a footing of equality with the burgess. A contract did not ordinarily furnish a ground of action, but where the right of the creditor was acknowledged, it was so all-powerful that there
CHAP- xr LAW AND JUSTICE m5
was no deliverance for the poor debtor, and no humane or equitable consideration was shown towards him. It seemed as if the law found a pleasure in presenting on all sides its sharpest spikes, in drawing the most extreme consequences, in forcibly obtruding on the bluntest understanding the tyrannic nature of the idea of right. The poetical form and
the genial symbolism, which so pleasingly prevail in the Germanic legal ordinances, were foreign to the Roman ; in his law all was clear and precise; no symbol was employed, no institution was superfluous. It was not cruel ; everything necessary was performed without much ceremony, even the punishment of death ; that a free man could not be tortured was a primitive maxim of Roman law, to obtain which other peoples have had to struggle for thousands of years. Yet this law was frightful in its inexorable severity, which we cannot suppose to have been very greatly mitigated by
humanity in practice, for it was really the law of the people ; more terrible than Venetian fl'ombi and chambers of torture was that series of living entombments which the poor man saw yawning before him in the debtors’ towers of the rich. But the greatness of Rome was involved in, and was based upon, the fact that the Roman people ordained for itself and endured a system of law, in which the eternal principles of freedom and of subordination, of property and of legal redress, reigned and still at the present day reign unadul terated and unmodified.
Roman religion.
CHAPTER XII
RELIGION
THE Roman world of gods, as we have already indicated 34), was higher counterpart, an ideal reflection, of the earthly Rome, in which the little and the great were alike repeated with painstaking exactness. The state and the clan, the individual phenomenon of nature as well as the individual mental operation, every man, every place and
object, every act even falling within the sphere of Roman law, reappeared in the Roman world of gods; and, as earthly things come and go in perpetual flux, the circle of the gods underwent corresponding fluctuation. The tutelary spirit, which presided over the individual act, lasted no longer than that act itself: the tutelary spirit of the individual man lived and died with the man; and eternal duration belonged to divinities of this sort only in so far as similar acts and similarly constituted men and therefore spirits of similar kind were ever coming into existence afresh. As the Roman gods ruled over the Roman com munity, so every foreign community was presided over by its own gods; but sharp as was the distinction between the burgess and non-burgess, between the Roman and the foreign god, both foreign men and foreign divinities could be admitted resolution of the community to the freedom of Rome. and when the citizens of conquered city were
RELIGION soon: I
a
by
a
a
a
(p.
crur. xrr RELIGION no,
transported to Rome, the gods of that city were also invited to take up their new abode there.
We obtain information regarding the original cycle of Oldest . . . . tableof
the gods, as it stood In Rome previous to any contact with Roman the Greeks, from the list of the public and duly named festive“ festival-days (firr'aepublicae) of the Roman community, which
is preserved in its calendar and is beyond all question the
oldest document which has reached us from Roman antiquity. The first place in it is occupied by the gods Jupiter and Mars along with the duplicate of the latter, Quirinus. To Jupiter all the days of full moon (idus) are sacred, besides all the wine-festivals and various other days
to be mentioned afterwards; the arst May (agonalia) is dedicated to his counterpart, the “bad Jovis” (Ve-diow's). To Mars belongs the new-year of the 1st March, and generally the great warrior-festival in this month which derived its very name from the god ; this festival, introduced by the horse-racing (equirn'a) on the 27th February, had during March its principal solemnities on the days of the shield-forging (equirrz'a or Mamuralia, March 14), of the armed dance at the Comitium (quinquatrm, March 19), and
of the consecration of trumpets (tubilusm'um, March 23). As, when a war was to be waged, it began with this festival, so after the close of the campaign in autumn there followed a further festival of Mars, that of the consecration of arms
October 19). Lastly, to the second Mars, Quirinus, the 17th February was appropriated (Quirz'nalrh). Among the other festivals those which related to the culture
of corn and wine hold the first place, while the pastoral
feasts play a subordinate part. To this class
especially the great series of spring-festivals in April, in the course of which sacrifices were offered on the I5th to Tellus, the nourishing earth (fardia'a’ia, sacrifice of the pregnant cow), on the 19th to Ceres, the goddess of ger mination and growth (Carz'alia), on the 21st to Pales, the
(armilurm'um,
belongs
:08 RELIGION BOOK 1
fecundating goddess of the flocks (Parilia), on the 23rd to Jupiter, as the protector of the vines and of the vats of the previous year’s vintage which were first cpened on this day ( Vinalia), and on the 2 5th to the bad enemy of the crops, rust (Robigur: Robigalia). So after the completion of the work of the fields and the fortunate ingathering of their produce double festivals were celebrated in honour of the god and goddess of inbringing and harvest, Consus (from condere) and Ops ; the first, immediately after the completion of cutting (August 21, Consualia; August 25, Opiconu'z/a) ; and the second, in the middle of winter, when the blessings of the granary are especially manifest (December 1 5,
Consuah'a; December 19, Opab'a); between these two latter days the thoughtfulness of the old arrangers of the
festivals inserted that of seed-sowing (Saturnalia from Saéturnus or Satumus, December 17).
In like manner the festival of must or of healing (medz'm'nalia, October I so called because healing virtue was attributed to the fresh must, was dedicated to Jovis as the wine-god after the com pletion of the vintage; the original reference of the third wine-feast (Vinalia, August 19) not clear. To these festivals were added at the close of the year the wolf-festival (Lupemzlia, February of the shepherds in honour of the good god, Faunus, and the boundary-stone festival (Termi nalia, February 23) of the husbandmen, as also the summer grove-festival of two days (Lucaria, July 19, 21) which may have had reference to the forest-gods(Sil11am'), the fountain festival (Fontinalia, October 13), and the festival of the shortest day, which brings in the new sun (An-geronalia, Divalia, December 21).
Of not less importance—as was to be expected in the case of the port of Latium-were the mariner-festivals of the divinities of the sea (Ncptunalia, July 3), of the harbour (Portunalia, August 17), and of the Tiber stream
(Volturnalia, August 27).
2
1 7)
is
a
I),
can. xn RELIGION
m9
Handicraft and art, on the other hand, are represented in this cycle of the gods only by the god of fire and of smith’s work, Vulcanus, to whom besides the day named after him (Volcanalia, August 23) the second festival of the consecration of trumpets was dedicated
May 23), and eventually also by the festival of Carmentis (Carmmtalia, January II, 15), who probably was adored originally as the goddess of spells and of song and only inferentially as protectress of births.
Domestic and family life in general were represented by the festival of the goddess of the house and of the spirits of the storechamber, Vesta and the Penates ( Vestalia, June 9); the festival of the goddess of birth 1(Matralia, June 1 r); the festival of the blessing of children, dedicated to Libel‘ and Libera (Lz'beralia, March 17), the festival of departed spirits (Feralia, February 21), and the three days’ ghost celebration (Lemuria, May 9, 11, 13); while those having reference to civil relations were the two—otherwise to us somewhat obscure—festivals of the king’s flight (Regrfugium, February 24) and of the people's flight (Poplzfizgia, July
of which at least the last day was devoted to Jupiter, and the festival of the Seven Mounts (Agom'a or Seflimonlium, December 11). A special day (agom'a, January was also consecrated to Janus, the god of beginning. The real nature of some other days-that of Furrina (July
and that of the Larentalia devoted to Jupiter and Acca Larentia, perhaps a feast of the Lares (December 23)-—is no longer known.
This table complete for the immoveable public
This was, to all appmrance, the original nature of the "morning mother" or Mater matuta; in connection with which we may recall the circumstance that, as the names Lucius and especially Manius show, the morning hour was reckoned as lucky for birth. Mater matuta probably became goddess of sea and harbour only at a later epoch under the influence of the myth of Leucothea the fact that the goddess was chiefly worshipped by women tells against the view that she was originally a harbour-goddess.
v01. r4
(tubz'lustrium,
1
;
1 a
is
9) 2
5),
5),
Mars and Jupiter.
RELIGION noox 1
festivals; and—although by the side of these standing festal days there certainly occurred from the earliest times changeable and occasional festivals-this document, in what it says as well as in what it omits, opens up to us an insight into a primitive age otherwise almost wholly lost to us. The union of the Old Roman community and the Hill-Romans had indeed already taken place when this table of festivals was formed, for we find in it Quirinus alongside of Mars; but, when this festival-list was drawn up, the Capitoline temple was not yet in existence, for Juno and Minerva are absent; nor was the temple of Diana erected on the Aventine; nor was any notion of worship borrowed from the Greeks.
The central object not only of Roman but of Italian worship generally in that epoch when the Italian stock still dwelt by itself in the peninsula was, according to all indications, the god Maurs or Mars, the killing god,1 pre eminently regarded as the divine champion of the burgesses, hurling the spear, protecting the flock, and overthrowing the foe. Each community of course possessed its own Mars, and deemed him to be the strongest and holiest of all ; and accordingly every “var sacrum” setting out to found a new community marched under the protection of its own Mars. To Mars was dedicated the first month not only in the Roman calendar of the months, which in no other instance takes notice of the gods, but also probably in all the other Latin and Sabellian calendars: among the Roman proper names, which in like manner contain no allusion to any gods, Marcus, Mamercus, and Mamurius appear in prevailing use from very early times; with Mars and his sacred woodpecker was connected the oldest Italian
1 From Maura, which is the oldest form handed down by tradition, thu'e have been developed by different treatment of the 14 Man, Ma'uors, Man; the transition to 6 (similar to Paula, Pala, and the like) appears also in the double form Mar-Mar (comp. Mamlriur) alongside of Mar Mar and Ma-Mm. ‘
cnn. xrt RELIGION an
prophecy; the wolf, the animal sacred to Mars, was the badge of the Roman burgesses, and such sacred national legends as the Roman imagination was able to produce referred exclusively to the god Mars and to his duplicate
In the list of festivals certainly Father Diovis- a purer and more civil than military reflection of the character of the Roman community—occupies a larger space than Mars, just as the priest of Jupiter has precedence over the two priests of the god of war; but the latter still plays a very prominent part in the list, and it is even quite likely that, when this arrangement of festivals was established, Jovis stood by the side of Mars like Ahuramazda by the side of Mithra, and that the worship of the warlike Roman community still really centred at this time in the martial god of death and his March festival, while it was not the “care-destroyer” afterwards introduced by the Greeks, but Father Jovis himself, who was regarded as the god of the heart-gladdening wine.
It is no part of our present task to consider the Roman Nature of deities in detail; but it is important, even in an historical the Roman point of view, to call attention to the peculiar character at godl once of shallowness and of fervour that marked the Roman
faith. Abstraction and personification lay at the root of
the Roman as well as of the Hellenic mythology: the
Hellenic as well as the Roman god was originally suggested
by some natural phenomenon or some mental conception,
and to the Roman just as to the Greek every divinity
appeared a person. This is evident from their apprehend
ing the individual gods as male or female ; from their style
of appeal to an unknown deity,-“ Be thou god or goddess,
man or woman ;” and from the deeply cherished belief that
the name of the proper tutelary spirit of the community
ought to remain for ever unpronounced, lest an enemy
should come to learn it and calling the god by his name
should entice him beyond the bounds. A remnant of this
Quirinus.
ala RELIGION aoox I
strongly sensuous mode of apprehension clung to Mars in particular, the oldest and most national form of divinity in
But while abstraction, which lies at the foundation of every religion, elsewhere endeavoured to rise to wider and more enlarged conceptions and to penetrate ever more deeply into the essence of things, the forms of the Roman faith remained at, or sank to, a singularly low level of con ception and of insight. While in the case of the Greek every influential motive speedily expanded into a group of forms and gathered around it a circle of legends and ideas, in the case of the Roman the fundamental thought remained stationary in its original naked rigidity. The religion of Rome had nothing of its own presenting even a remote resemblance to the religion of Apollo investing earthly morality with a halo of glory, to the divine intoxication of
Dionysus, or to the Chthonian and mystical worships with ' their profound and hidden meanings. It had indeed its
“ bad god ” (Ve-diow's), its apparitions and ghosts (lemures), and afterwards its deities of foul air, of fever, of diseases, perhaps even of theft (Ia'uerna) ; but it was unable to excite that mysterious awe after which the human heart has always a longing, or thoroughly to embody the incomprehensible and even the malignant elements in nature and in man, which must not be wanting in religion if it would reflect man as a whole. In the religion of Rome there was hardly anything secret except possibly the names of the gods of the city, the Penates ; the real character, moreover, even of these gods was manifest to every one.
The national Roman theology sought on all hands to form distinct conceptions of important phenomena and qualities, to express them in its terminology, and to classify them systematically-—in the first instance, according to that division of persons and things which also formed the basis of private law—that it might thus be able in due fashion to invoke the god" ie'iividually or by classes, and to point
Italy.
can. xrr RELIGION
213
out (indzgitare) to the multitude the modes of appropriate invocation. Of such notions, the products of outward ab straction-of the homeliest simplicity, sometimes venerable, sometimes ridiculous-Roman theology was in substance made up. Conceptions such as sowing (saétumus) and field-labour (0):), ground (tellus) and boundary-stone (terminus), were among the oldest and most sacred of Roman divinities. Perhaps the most peculiar of all the forms of deity in Rome, and probably the only one for whose worship there was devised an efligy peculiarly Italian, was the double-headed Ianus; and yet it was suggestive of the idea so characteristic of the scrupulous spirit of Roman religion, that at the commencement of every act the “spirit of opening” should first be invoked,
while it above all betokened the deep conviction that it was as indispensable to combine the Roman gods in sets as it was necessary that the more personal gods of the Hellenes should stand singly and apart. 1 Of all the worships of Rome that which perhaps had the deepest hold was the worship of the tutelary spirits that presided in and over the household and the storechamber: these were in public worship Vesta and the Penates, in family worship the gods of forest and field, the Silvani, and above all the gods of the household in its strict sense, the Lases or Lares, to whom their share of the family meal was regularly assigned, and before whom it was, even in the time of
1 The facts, that gates and doors and the morning (ianus matutimu) were sacred to Ianus, and that he was always invoked before any other god and was even represented in the series of coins before Jupiter and the other gods, indicate unmistakeably that he was the abstraction of opening and beginning. The double-head looking both ways was connected with the gate that opened both ways. To make him god of the sun and of the year is the less justifiable, because the month that bears his name was originally the eleventh, not the first; that month seems rather to have derived its name from the circumstance, that at this season after the rest of the middle of winter the cycle of the labours of the field began afresh. It was, however, a matter of course that the opening of the year should also be included in the sphere of Ianus, especially after Ianuarius came to be placed at its head.
simply
Spirits.
Cato the Elder, the first duty of the father of the household on returning home to perform his devotions. In the rank ing of the gods, however, these spirits of the house and of the field occupied the lowest rather than the highest place ; it was—and it could not be otherwise with a religion which renounced all attempts to idealize-not the broadest and most general, but the simplest and most individual abstrac tion, in which the pious heart found most nourishment.
This indifference to ideal elements in the Roman religion was accompanied by a practical and utilitarian tendency, as is clearly enough apparent in the table of festivals which has been already explained. Increase of substance and of prosperity by husbandry and the rearing of flocks and herds, by seafaring and commerce-this was what the Roman desired from his gods; and it very well accords with this view, that the god of good faith (deusfidius), the goddess of chance and good luck (for: fartuna), and the god of traffic (mercurius), all originating out of their daily dealings, although not occurring in that ancient table of festivals, appear very early as adored far and near by the Romans. Strict frugality and mercantile speculation were rooted in the Roman character too deeply not to find their thorough reflection in its divine counterpart.
Respecting the world of spirits little can be said. The departed souls of mortal men, the “good” (Manes), con tinued to exist as shades haunting the spot where the body reposed (dii inferi), and received meat and drink from the survivors. But they dwelt in the depths beneath, and there was no bridge that led from the lower world either to men ruling on earth or upward to the gods above. The hero worship of the Greeks was wholly foreign to the Romans, and the late origin and poor invention of the legend as to the foundation of Rome are shown by the thoroughly unRoman transformation of king Romulus into the god
214
RELIGION BOOK r
Quirinus.
Numa, the oldest and most venerable name in
can. xii RELIGION
215
Roman tradition, never received the honours of a god in Rome as Theseus did in Athens.
The most ancient priesthoods in the community bore reference to Mars; especially the priest of the god of the community, nominated for life, “the kindler of Mars” (flamen Martialis) as he was designated from presenting burnt-offerings, and the twelve “leapers ” (salz'i), a band of young men who in March performed the war-dance in honour of Mars and accompanied it by song. We have already explained 106) how the amalgamation of the Hill-com munity with that of the Palatine gave rise to the duplication of the Roman Mars, and thereby to the introduction of a second priest of Mars-the flame/z Quin'nali:—and second guild of dancers-the salii collim'.
To these were added other public worships (some of which probably had an origin far earlier than that of Rome), for which either single priests were appointed—as those of Carmentis, of Volcanus, of the god of the harbour and the river-or the celebration of which was committed to particular colleges or clans in name of the people. Such 1 college was probably that of the twelve “field-brethren” (fratres arr/ales) who invoked the “creative goddess” (11:0 11z2:) in May to bless the growth of the seed although
very doubtful whether they already at this period enjoyed that peculiar consideration which we find subsequently accorded to them in the time of the empire. These were accompanied by the Titian brotherhood, which had to preserve and to attend to the distinctive :ultus of the Roman Sabines 5), and by the thirty “curial kindlers” (flamines curiales), instituted for the hearth of the thirty curies. The “wolf festival” (lupercalia) already mentioned was celebrated for the protection of the flocks and herds in honour of the “favourable god” (faunas), by the Quinctian clan and the Fabii who were associated with them after the admission of the Hill-Romans, in the month of February-a genuine
(p. 5
it is
;
a
(p.
2I6 RELIGION sooK I
shepherds’ carnival, in which the “Wolves ” (lupem') jumped about naked with a girdle of goatskin, and whipped with thongs those whom they met. In like manner the com munity may be conceived as represented and participating in the case of other gentile worships.
To this earliest worship of the Roman community new rites were gradually added. The most important of these worships had reference to the city as newly united and virtually founded afresh by the construction of the great wall and stronghold. In it the highest and best Iovis of the Capitol—that the genius of the Roman people-was placed at” the head of all the Roman divinities, and his “ kindler thenceforth appointed, the flamen Din/is, formed in conjunction with the two priests of Mars the sacred triad of high-priests. Contemporaneously began the callus of the new single city-hearth-Vesta-and the kindred :ultus of the Penates of the community 140). Six chaste virgins, daughters as were of the household of the Roman people, attended to that pious service, and had to maintain the wholesome fire of the common hearth always blazing as an example (p. 44) and an omen to the burgesses. This worship, half-domestic, half-public, was the most sacred of all in Rome, and accordingly was the latest of all the heathen worships there to give way before the ban of Christianity. The Aventine, moreover, was assigned to
Diana as the representative of the Latin confederacy (p. 33), but for that very reason no special Roman priesthood was appointed for her; and the community gradually
became accustomed to render definite homage to numerous other deified abstractions by means of general festivals or by representative priesthoods specially destined for their service; in particular instances-such as those of the god dess of flowers (Flora) and of fruits (Pomona)—it appointed also special flamines, so that the number of these was at length fifteen. But among them they carefully distinguished
r
it it
is,
(p.
can. xn RELIGION
217
those three "great kindlers ” (flamine: maiores), who down to the latest times could only be taken from the ranks of the old burgesses, just as the old incorporations of the Palatine and Quirinal Salz'i always asserted
precedence over all the other colleges of priests. Thus the necessary and stated observances due to the gods of the community
were entrusted once for all by the state to fixed colleges or regular ministers; and the expense of sacrifices, which was presumably not inconsiderable, was covered partly by the assignation of certain lands to particular temples, partly by the fines (pp. 92, 196).
It cannot be doubted that the public worship of the other Latin, and presumably also of the Sabellian, communities was essentially similar in character. At any rate it can be shown that the Flamines, Salii, Luperci, and Vestales were institutions not special to Rome, but general among the Latins, and at least the first three colleges appear to have been formed in the kindred communities independently of the Roman model.
Lastly, as the state made arrangements for the cycle of its gods, so each burgess might make similar arrangements within his individual sphere, and might not only present sacrifices, but might also consecrate set places and ministers, to his own divinities.
There was thus enough of priesthood and of priests in Rome. Those, however, who bad business with a god resorted to the god, and not to the priest. Every suppliant and inquirer addressed himself directly to the divinity the community of course by the king as its mouthpiece, just as the curia by the curr'a and the equites by their colonels ; no intervention of a priest was allowed to conceal or to obscure this original and simple relation. But it was no easy matter to hold converse with a god. The god had his own way of speaking, which was intelligible only to the man acquainted with it; but one who did rightly under
Colleges of sacrel lore.
218 RELIGION aoox I
stand it knew not only how to ascertain, but also how to manage, the will of the god, and even in case of need to overreach or to constrain him. It was natural, therefore, that the worshipper of the god should regularly consult such men of skill and listen to their advice; and thence arose the corporations or colleges of men specially skilled in religious lore, a thoroughly national Italian institution, which had a far more important influence on political development than the individual priests and priesthoods. These colleges have been often, but erroneously, confounded with the priesthoods. The priesthoods were charged with the worship of a specific divinity; the skilled colleges, on the other hand, were charged with the preservation of traditional rules regarding those more general Observances, the proper fulfilment of which implied a certain amount of knowledge and rendered it necessary that the state in its own interest should provide for the faithful transmission of that knowledge. These close corporations supplying their own vacancies, of course from the ranks of the burgesses, became in this way the depositaries of skilled arts and sciences.
Under the Roman constitution and that of the Latin communities in general there were originally but two such colleges; that of the augurs and that of the pontifices. l
1 The clearest evidence of this is the fact, that in the communities organized on the Latin scheme augurs and pontifices occur everywhere (mg. Cic. dc Lege Agr. ii. 35, 96, and numerous inscriptions), as does likewise the pater palralus of the Fetiales in Laurentum (Orelli, 2276), but the other colleges do not. The former, therefore, stand on the same footing with the constitution of ten curies and the Flamines, Salii, and Luperci, as very ancient heirlooms of the Latin stock; whereas the Duoviri sacrirfaciundir, and the other colleges, like the thirty curies and the Servian tribes and centuries, originated in, and remained therefore confined to, Rome. But in the case of the second college—the pontifices —the influence of Rome probably led to the introduction of that name into the general Latin scheme instead of some earlier-perhaps more than one-designation; or-a hypothesis which philologically has much in its favour-pans originally signified not " bridge," but “ way " generally, and fontifex therefore meant “ constructor of ways. "
The statements regarding the original number of the augurs in particular
religious
can. xii - RELIGION
219
The six “ bird-carriers ” (augures) were skilled in interpreting
the language of the gods from the flight of birds; an art
which was prosecuted with great earnestness and reduced
to a quasi-scientific system. The six “bridge-builders” (ponlg'fices) derived their name from their function, as sacred Pontificee. as it was politically important, of conducting the building
and demolition of the bridge over the Tiber. They were the Roman engineers, who understood the mystery of measures and numbers; whence there devolved upon them also the duty of managing the calendar of the state, of pro claiming to the people the time of new and full moon and the days of festivals, and of seeing that every religious and every judicial act took place on the right day. As they had thus an especial supervision of all religious observances, it was to them in case of need—on occasion of marriage, testament, and adrogatio—that the preliminary question was addressed, whether the business proposed did not in any respect offend against divine law ; and it was they who fixed and promulgated the general exoteric precepts of ritual, which were known under the name of the “royal laws. ” Thus they acquired (although not probably to the full extent till after the abolition of the monarchy) the general oversight of Roman worship and of whatever was connected with it-and what was there that was not so connected? They themselves described the sum of their knowledge as “the science of things divine and human. ” In fact the rudiments of spiritual and temporal jurisprudence as well as of historical recording proceeded from this college. For all writing of history was associated with the
vary. The view that it was necessary for the number to be an odd one is refuted by Cicero (de Legs Agr. 35, 96) and Livy (x. does not say so, but only states that the number of Roman augurs had to be divisible by three, and so must have had an odd number as its basis. According to Livy c. ) the number was six down to the Ogulnian law, and the same
virtually alfirmed by Cicero (dc Rep. ii. 14) when he represents Romulus as instituting four, and Numa two, augural stalls. On the number of the pontifices comp. Staatrrec/rt, ii. 20.
is (l.
; 9,
ii.
6)
Fetiales.
s20 RELIGION - sooK 1
calendar and the book of annals; and, as from the organ ization of the Roman courts of law no tradition could originate in these courts themselves, it was necessary that the knowledge of legal principles and procedure should be traditionally preserved in the college of the pontifices, which alone was competent to give an opinion respecting court-days and questions of religious law.
By the side of these two oldest and most eminent corpora tions of men versed in spiritual lore may be to some extent ranked the college of the twenty state-heralds (feliales, of uncertain derivation), destined as a living repository to pre serve traditionally the remembrance of the treaties con cluded with neighbouring communities, to pronounce an authoritative opinion on alleged infractions of treaty-rights, and in case of need to attempt reconciliation or declare war. They had precisely the same position with reference to international, as the pontifices had with reference to re
ligious, law; and were therefore, like the latter, entitled to point out the law, although not to administer it.
But in however high repute these colleges were, and important and comprehensive as were the functions assigned to them, it was never forgotten-least of all in the case of those which held the highest position—that their duty was not to command, but to tender skilled advice, not directly to obtain the answer of the gods, but to explain the answer when obtained to the inquirer. Thus the highest of the priests was not merely inferior in rank to the king, but might not even give advice to him unasked. It was the province of the king to determine whether and when he would take an observation of birds ; the “bird-seer ” simply stood beside him and interpreted to him, when necessary, the language of the messengers of heaven. In like manner the Fetiaiz's and the Pontifex could not interfere in matters of international or common law except when those con cerned therewith desired The Romans, notwithstanding
it.
can. an RELIGION 22!
all their zeal for religion, adhered with unbending strictness to the principle that the priest ought to remain completely powerless in the state and—excluded from all command— ought like any other burgess to render obedience to the humblest magistrate.
The Latin worship was grounded essentially on man’s chmm enjoyment of earthly pleasures, and only in a subordinate
degree on his fear of the wild forces of nature ; it consisted pre-eminently therefore in expressions of joy, in lays and
songs, in games and dances, and above all in banquets. In Italy, as everywhere among agricultural tribes whose
ordinary food consists of vegetables, the slaughter of cattle was at once a household feast and an act of worship: a pig was the most acceptable offering to the gods, just because it was the usual roast for a feast. But all extravagance of expense as well as all excess of rejoicing was inconsistent with the solid character of the Romans. Frugality in relation to the gods was one of the most prominent traits of the primitive Latin worship; and the free play of imagination was repressed with iron severity by the moral self-discipline which the nation maintained. In consequence the Latins remained strangers to the excesses which grow out of unrestrained indulgence. At the very core of the Latin religion there lay that profound moral impulse which leads men to bring earthly guilt and earthly punishment into relation with the world of the gods, and to view the former as a crime against the gods, and the latter as its expiation. The execution of the criminal condemned to death was as much an expiatory sacrifice offered to the divinity as was the killing of an enemy in just war; the thief who by night stole the fruits of the field paid the penalty to Ceres on the gallows just as the enemy paid it to mother earth and the good spirits on the field of battle.
The profound and fearful idea of substitution also meets us here: when the gods of the community were angry and
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nobody could be laid hold of as definitely guilty, they might be appeased by one who voluntarily gave himself up (devour: se); noxious chasms in the ground were closed, and battles half lost were converted into victories, when a brave burgess threw himself as an expiatory offering into the abyss or upon the foe. The “ sacred spring ” was based on a similar view; all the offspring whether of cattle or of men within a specified period were presented to the gods. If acts of this nature are to be called human sacrifices, then such sacrifices belonged to the essence of the Latin faith ; but we are bound to add that, far back as our view reaches into the past, this immolation, so far as life was concerned, was limited to the guilty who had been convicted before a civil tribunal, or to the innocent who voluntarily chose to die. Human sacrifices of a different description run counter to the fundamental idea of a sacrificial act, and, wherever they occur among the Indo-Germanic stocks at least, are based on later degeneracy and barbarism. They never gained admission among the Romans; hardly in a single instance were superstition and despair induced, even in times of extreme distress, to seek an extraordinary de liverance through means so revolting. Of belief in ghosts, fear of enchantments, or dealing in mysteries, compara tively slight traces are to be found among the Romans. Oracles and prophecy never acquired the importance in Italy which they obtained in Greece, and never were
able to exercise a serious control over private or public life. But on the other hand the Latin religion sank into an incredible insipidity and dulness, and early became shrivelled into an anxious and dreary round of ceremonies. The god of the Italian was, as we have already said, above all things an instrument for helping him to the attainment of very substantial earthly aims ; this turn was given to the religious views of the Italian by his tendency towards the palpable
and the real, and is no less distinctly apparent in the saint
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worship of the modern inhabitants of Italy. The gods confronted man just as a creditor confronted his debtor; each of them had a duly acquired right to certain perform ances and payments; and as the number of the gods was as great as the number of the incidents in earthly life, and the neglect or wrong performance of the worship of each god revenged itself in the corresponding incident, it was a laborious and difficult task even to gain a knowledge of a man’s religious obligations, and the priests who were skilled in the law of divine things and pointed out its requirements -—the joniz'jices-could not fail to attain an extraordinary influence. The upright man fulfilled the requirements of sacred ritual with the same mercantile punctuality with which he met his earthly obligations, and at times did more than was due, if the god had done so on his part. Man even dealt in speculation with his god ; a vow was in reality as in name a formal contract between the god and the man, by which the latter promised to the former for a certain service to be rendered a certain equivalent return; and the Roman legal principle that no contract could be concluded by deputy was not the least important of the reasons on account of which all priestly mediation remained excluded from the religious concerns of man in Latium. Nay, as the Roman merchant was entitled, without injury to his conventional rectitude, to fulfil his contract merely in the letter, so in dealing with the gods, according to the
teaching of Roman theology, the copy of an object was given and received instead of the object itself. They pre sented to the lord of the sky heads of onions and poppies, that he might launch his lightnings at these rather than at the heads of men. In payment of the offering annually demanded by father Tiber, thirty puppets plaited of rushes were annually thrown into the stream. 1 The ideas of
1 It is only an unrefiecting misconception that can discover in this usage a reminiscence of ancient human sacrifices.
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divine mercy and placability were in these instances inseparably mixed up with a pious cunning, which tried to delude and to pacify so formidable a master by means of a sham satisfaction. The Roman fear of the gods accordingly exercised powerful influence over the minds of the multi tude; but it was by no means that sense of awe in the presence of an all-controlling nature or of an almighty God, that lies at the foundation of the views of pantheism and monotheism respectively ; on the contrary, it was of a very earthly character, and scarcely different in any material respect from the trembling with which the Roman debtor approached his just, but very strict and very powerful creditor. It is plain that such a religion was fitted rather to stifle than to foster artistic and speculative views. When the Greek had clothed the simple thoughts of primitive times with human flesh and blood, the ideas of the gods so formed not only became the elements of plastic and poetic art, but acquired also that universality and elasticity which are the profoundest characteristics of human nature and for this very reason are essential to all religions that aspire to rule the world. Through such means the simple view of nature became expanded into the conception of a cos mogony, the homely moral notion became enlarged into a principle of universal humanity; and for a long period the Greek religion was enabled to embrace within it the physical and metaphysical views—the whole ideal development of the nation—and to expand in depth and breadth with the increase of its contents, until imagination and speculation rent asunder the vessel which had nursed them. But in Latium the embodiment of the conceptions of deity con tinued so wholly transparent that it afforded no opportunity for the training either of artist or poet, and the Latin religion always held a distant and even hostile attitude towards art. As the god was not and could not be aught
else than the spiritualization of an earthly phenomenon,
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this same earthly counterpart naturally formed his place of abode (templum) and his image; walls and efligies made by the hands of men seemed only to obscure and to em barrass the spiritual conception. Accordingly the original Roman worship had no images of the gods or houses set apart for them; and although the god was at an early period worshipped in Latium, probably in imitation of the Greeks, by means of an image, and had a little chapel (aedicula) built for him, such a figurative representation was reckoned contrary to the laws of Numa and was generally regarded as an impure and foreign innovation. The Roman religion could exhibit no image of a god peculiar to with the exception, perhaps, of the double headed Ianus; and Varro even in his time derided the desire of the multitude for puppets and efligies. The utter want of productive power in the Roman religion was likewise the ultimate cause of the thorough poverty which always marked Roman poetry and still more Roman speculation.
The same distinctive character was manifest, moreover, in the domain of its practical use. The practical gain which accrued to the Roman community from their religion was code of moral law gradually developed by the priests, and the ponhfias in particular, which on the one hand supplied the place of police regulations at time when the state was still far from providing any direct police-guardian ship for its citizens, and on the other hand brought to the bar of the gods and visited with divine penalties the breach of moral obligations. To the regulations of the former class belonged the religious inculcation of due observance of holidays and of cultivation of the fields and vineyards according to the rules of good husbandry—which we shall have occasion to notice more fully in the sequel~—as well as the worship of the hearth or of the Lares which was connected with considerations of sanitary police (p. 21 3),
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and above all the practice of burning the bodies of the dead, adopted among the Romans at a singularly early period, far earlier than among the Greeks—a practice implying a rational conception of life and of death, which was foreign to primitive times and is even foreign to our selves at the present day. It must be reckoned no small achievement that the national religion of the Latins was able to carry out these and similar improvements. But the civilizing effect of this law was still more important. If a husband sold his wife, or a father sold his married son; if a child struck his father, or a daughter-in-law her father-in law ; if a patron violated his obligation to keep faith with his guest or dependent; if an unjust neighbour displaced a boundary-stone, or the thief laid hands by night on the grain entrusted to the common good faith; the burden of
the curse of the gods lay thenceforth on the head of the offender. Not that the person thus accursed (sacer) was outlawed; such an outlawry, inconsistent in its nature with all civil order, was only an exceptional occurrence-an aggravation of the religious curse in Rome at the time of the quarrels between the orders. It was not the province of the individual burgess, or even of the wholly powerless priest, to carry into effect such a divine curse. Primarily the person thus accursed became liable to the divine penal judgment, not to human caprice ; and the pious popular faith, on which that curse was based, must have had power even over natures frivolous and wicked. But the banning was not confined to this; the king was in reality entitled and bound to carry the ban into execution, and, after the fact, on which the law set its curse, had been according to his conscientious conviction established, to slay the person under ban, as it were, as a victim offered up to the injured deity (supplzh'um), and thus to purify the community from
the crime of the individual. If the crime was of a minor nature, for the slaying of the guilty there was substituted a
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ransom through the presenting of a sacrificial victim or of similar gifts. Thus the whole criminal law rested as to its ultimate basis on the religious idea of expiation.
But religion performed no higher service in Latium than the furtherance of civil order and morality by such means as these. In this field Hellas had an unspeakable advan tage over Latium ; it owed to its religion not merely its whole intellectual development, but also its national union, so far as such an union was attained at all; the oracles and festivals of the gods, Delphi and Olympia, and the Muses, daughters of faith, were the centres round which revolved all that was great in Hellenic-life and all in it that was the common heritage of the nation. And yet even here Latium had, as compared with Hellas, its own advantages. The Latin religion, reduced as it was to the level of ordinary perception, was completely intelligible to every one
and accessible in common to all; and therefore the Roman community preserved the equality of its citizens, while Hellas, where religion rose to the level of the highest
had from the earliest times to endure all the blessing and curse of an aristocracy of intellect. The Latin religion like every other had its origin in the effort of faith to fathom the infinite; it is only to a superficial view, which is deceived as to the depth of the stream because it is clear,
that its transparent spirit-world can appear to be shallow. This fervid faith disappeared with the progress of time as necessarily as the dew of morning disappears before the rising sun, and thus the Latin religion came subsequently to wither; but the Latins preserved their simplicity of belief longer than most peoples and longer especially than the Greeks. As colours are effects of light and at the same time dim so art and science are not merely the creations but also the destroyers of faith and, much as this process at once of development and of destruction swayed by necessity, by the same law of nature certain results have
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been reserved to the epoch of early simplicity-results which subsequent epochs make vain endeavours to attain. The mighty intellectual development of the Hellenes, which created their religious and literary unity (ever imperfect as that unity was), was the very thing that made it impossible for them to attain to a genuine political union; they sacrificed thereby the simplicity, the flexibility, the self devotion, the power of amalgamation, which constitute the conditions of any such union. It is time therefore to desist from that childish view of history which believes that it can commend the Greeks only at the expense of the Romans, or the Romans only at the expense of the Greeks ; and, as we allow the oak to hold its own beside the rose, so should we abstain from praising or censuring the two noblest organizations which antiquity has produced, and comprehend the truth that their distinctive excellences have a necessary connection with their respective defects. The deepest and ultimate reason of the diversity between the two nations lay beyond doubt in the fact that Latium did not, and that Hellas did, during the season of growth come into contact with the East. No people on earth was great enough by its own efforts to create either the marvel of Hellenic or at a later period the marvel of Christian culture; history has produced these most brilliant results only where the ideas of Aramaic religion have sunk into an Indo-Gerrnanic soil. But if for this reason Hellas is the prototype of purely human, Latium is not less for all time the prototype of national, development; and it is the duty of us their successors to honour both and to learn from both.
Such was the nature and such the influence of the Roman religion in its pure, unhampered, and thoroughly national development. Its national character was not infringed by the fact that, from the earliest times, modes and systems of worship were introduced from abroad; no more than the bestowal of the rights of citizenship on
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individual foreigners denationalized the Roman state. An exchange of gods as well as of goods with the Latins in older time must have been a matter of course; the trans plantation to Rome of gods and worships belonging to less cognate races is more remarkable. Of the distinctive Sabine worship maintained by the Tities we have already spoken (p. 215). Whether any conceptions of the gods were borrowed from Etruria is more doubtful: for the Lases, the older designation of the genii (from lumbas), and Minerva the goddess of memory (mem', marten/are), which it is customary to describe as originally Etruscan, were on the contrary, judging from philological grounds, indigenous to Latium. It is at any rate certain, and in keeping with all that we otherwise know of Roman inter course, that the Greek worship received earlier and more extensive attention in Rome than any other of foreign origin. The Greek oracles furnished the earliestioccasion of its introduction. The language of the Roman gods was on the whole confined to Yea and Nay or at the most to the making their will known by the method of casting lots, which appears in its origin Italian ,1 while from very ancient times-although not apparently until the impulse was received from the East-the more talkative gods of the Greeks imparted actual utterances of prophecy.