Here
under follows the transcription of chapter 2 of Houston Stewart
Chamberlain's The
Foundations of the 19th Century, 2nd ed., published by John Lane,
The
Bodley Head, 1912.
CONTENTS
|
93
SECOND CHAPTER
ROMAN LAW
Von Jugend auf ist
mir
Anarchie verdriesslicher gewesen als der Tod. — GOETHE
DISPOSITION
TO define in
clear
terms what we have inherited from Rome, what out of that vast
manufactory
of human destinies still exercises a living influence, is certainly
impossible,
unless we have a clear conception of what Rome was. Even Roman Law in
the
narrower sense of the word (Private Law), which, as every one knows,
forms
the chief material on which all juristical minds are to this day
trained,
and provides the actual basis even for the freest, most divergent and
more
modern systems of law, cannot be judged in a way that will give a
proper
estimate of its peculiar value, if it be simply regarded as a kind of
lay
Bible, a canon, which has taken a permanent place, hallowed by tens of
centuries. If this blind attachment to Roman legal dicta is the result
of a superficial historical appreciation, the same may be said of the
violent
reaction against Roman Law. Whoever studies this law and its slow
tedious
development, even if only in general outlines, will certainly form a
different
judgment. For then he will see how the Indo-European races * even in
earliest
times possessed certain clearly expressed
*
In
another place I shall have to recur to the difficult question of races
(see chap. iv.). I shall
here
only insert a very important remark:
94 ROMAN
LAW
fundamental legal convictions, which
developed in different ways in the different races, without ever being
able to attain to any full development; he will see that they could not
do so because no branch could succeed in founding a free and at the
same
time a lasting State; then he will be surprised to perceive how this
small
nation of men of strong character, the Romans, established both State
and
Law — the State by every one desiring permanently to establish his own
personal right, the Law by every one possessing the self-control to
make
the necessary sacrifices and to be absolutely loyal to the common weal;
and whoever gains this insight will certainly never speak except with
the
greatest reverence of Roman Law as one of the most valuable possessions
of mankind. At the same time he will certainly perceive that the
highest
quality of Roman Law and the one most worthy of imitation is its exact
suitability to definite conditions of life. He cannot, however, fail to
note that State and Law — both creations of the “born nation of
lawyers“
*
while from various
sides
the existence of an Aryan race is called in question, while many
philologists
doubt the validity of the language criterion (see Salomon
Reinach,
L'origine
des Aryens) and individual anthropologists point to the chaotic
results
of the measuring of skulls (e.g., Topinard and Ratzel), the
investigators
in the sphere of history of law unanimously use the expression Aryans
or
Indo-Europeans, because they find a definite conception of law in this
group of linguistically related peoples, who from the beginning and
through
all the branchings of a manifold development have fundamentally nothing
in common with certain equally ineradicable legal conceptions prevalent
among the Semites, Hamites, &c. (See the works of Savigny,
Mommsen,
Jhering and Leist.) No measuring of skulls and philological subtleties
can get rid of this great simple fact — a result of painfully accurate,
juristical research — and by it the existence of a moral Aryanism (in
contrast
to a moral non-Aryanism) is proved, no matter how varied are the
elements
of which the peoples of this group should be composed.
*
Jhering:
Entwickelungsgeschichte
des römischen Rechts, p. 81. An expression which is all the
more
remarkable as this great authority on law is wont to deny vigorously
that
anything is innate in a people; he even goes the length in his Vorgeschichte
der Indoeuropäer (p. 270) of making the extraordinary
statement
that the inherited physical (and with it simultaneously the moral)
structure
of man —
95 ROMAN
LAW
— are here inseparable, and that we
cannot understand either this State or this Law, if we have not a clear
conception of the Roman people and its history. This is all the more
indispensable,
as we have inherited from the Roman idea of State as well as from Roman
Private Law a great deal that still lives to-day — not to speak of the
political relations actually created by the Roman idea of State,
relations
to which we owe the very possibility of our existence to-day as
civilised
nations. Hence it may be opportune to ask ourselves, What kind of
people
were the Romans? What is their significance in history? Naturally only
a very hasty sketch can be given here: but it may, I hope, suffice to
give
us a clear idea of the political achievements of this great people in
their
essential outlines and to characterise with clearness the somewhat
complicated
nature of the legacy of politics and of political law that has been
handed
down to our century. Then and then only will it be feasible and
profitable
to consider our legacy of private law.
ROMAN
HISTORY
One would think
that,
as the Latin language and the history of Rome play such an important rôle
in our schools, every educated person would at least possess a clear
general
conception of the growth and achievements of the Roman people. But this
is not the case, and indeed it is not possible with the usual methods
of
instruction.
for this is surely
what
the term “race“ is intended to designate — has absolutely no influence
on his character, but solely the geographical surroundings, so that the
Aryan, if transferred to Mesopotamia, would eo ipso have become
a Semite and vice versa. In comparison with this, Haeckel's
pseudo-scientific
phantasma of different apes, from each of which a different race of men
derives its origin, seems a sensible theory. Of course one must not
forget
that Jhering had to contend all his life against the mystic dogma of an
“innate corpus juris,“ and that it is his great achievement to
have
paved a way for true science in this matter; that explains his
exaggerations
in the opposite direction.
96 ROMAN
LAW
Of course every person of culture is,
to a certain point, at home in Roman history: the legendary Romulus,
Numa
Pompilius, Brutus, the Horatii and Curiatii, the Gracchi, Marius,
Sulla,
Caesar, Pompey, Trajan, Diocletian and countless others, are all at
least
just as familiar to us (i.e., in regard to names and dates) as
our
own great men; a youth who could not give information about the Second
Punic War or confused the different Scipios would feel just as ashamed
as if he could not explain the advantages of the Roman legions and
maniples
over the Macedonian phalanx. One must also admit that Roman history, as
it is usually presented to us, is a remarkably rich store of
interesting
anecdotes; but the knowledge one derives from it is one-sided and
absolutely
defective. The whole history of Rome almost assumes the appearance of a
great and cruel sport, played by politicians and generals, whose
pastime
it is to conquer the world, whereby they achieve many marvellous
results
in the art of systematic oppression of foreign peoples and egging on of
their own, as well as in the equally noble art of inventing new
stratagems
of war and of putting them into practice with as large herds of human
cattle
as possible. There is beyond doubt some truth in this view. There came
a time in Rome when those who considered themselves aristocrats chose
war
and politics as their life-work, instead of taking them up only in time
of necessity. Just as with us a short time ago, a man of family could
only
become an officer, diplomatist or administrative official, so the
“upper
ten thousand“ in later Rome could enter only three professions that did
not degrade them socially — res militaris, juris scientia and eloquentia.
* And as the world was still young and the province of science not too
large to be covered, a man of ability could master all three; if in
addition
he had plenty of money, his qualifications
* Cf.
Savigny: Geschichte des römischen Rechtes im Mittelalter,
chap.
i.
97 ROMAN
LAW
for politics were complete. It is only
necessary to read over again the letters of Cicero to see from his
simple
confessions, hopelessly entrammelled as he was in the ideas of his
time,
and unable to look beyond his own nose, how mighty Rome and its
destinies
became the play-ball of idle dawdlers and how much truth there is in
the
assertion that Rome was not made but unmade by its politicians.
Politics
have their peculiarities in other countries as well as in Rome. From
Alexander
to Napoleon, one can hardly over-estimate the power of criminal
obstinacy
in purely political heroes. A brief discussion of this point is all the
more appropriate in this chapter, as Rome in particular is rightly
regarded
as a specifically political State and we may therefore hope to learn
from
it how and by whom great and successful politics are achieved.
What Gibbon says
about kings in general, that “their power is most effective in
destruction,“
is true of almost all politicians — as soon as they possess sufficient
power. I am not sure that it was not the wise Solon who made a
prosperous
development of the Athenian State impossible for all time, by doing
away
with the historically given composition of the population from various
tribes and introducing an artificial class-division according to
property.
This so-called timocracy (honour to him who has money) comes in, it is
true, of its own accord almost everywhere to a smaller or greater
extent,
and Solon at least took the precaution of making duties increase with
increase
of wealth; nevertheless he it was with his constitution that laid the
axe
to the root, from which — however painfully — the Athenian State had
grown.
* A less
*
Many
will think, but unjustly so, that the constitution of Lycurgus is still
more arbitrary. For Lycurgus does not undermine the foundations
provided
by historical development; on the contrary, he strengthens them. The
peoples
that had migrated, one after another, into Lacedaemonia, formed layers
above each other, the latest comers at the top — and Lycurgus allowed
this
to remain so. Though the
98 ROMAN
LAW
important man would not have ventured
to make such a revolutionary change in the natural course of
development,
and that would probably have been a blessing. And can we form a
different
opinion of Julius Caesar? Of the famous generals in the history of the
world as a politician he probably played the greatest part; in the most
widely different spheres (think only of the improvement of the
calendar,
the undertaking of a universal legal code, the founding of the African
colony) he revealed a penetrating understanding; as an organising
genius
he would, I think, not have been surpassed by Napoleon, under equally
favourable
conditions — and withal he had the inestimable advantage of being not a
foreign condottiere, like Napoleon or Diocletian, but a good
genuine
Roman, firmly rooted in his hereditary fatherland, so that his
individual
arbitrariness (as in the case of Lycurgus) would certainly not have
erred
far from the plumb-line of what suited his nation. And yet it is this
very
man and no other who bent the tough tree of life of the Roman con-
Pelasgians (Helots)
tilled
the land, the Achaeans (περιοίκοι) engaged in trade and
industry, and the Dorians (Spartiatae) waged war
and in consequence ruled, that was no artificial division of labour but
the confirmation of a relationship actually existing. I am also
convinced
that life was in Lacedaemonia for a long time happier than in any other
part of Greece; slave-trade was forbidden, the Helots were hereditary
tenants,
and though not bedded on roses they yet enjoyed considerable
independence;
the περιοίκοι had
freedom to move about, even their limited military service being
frequently
relaxed in the interests of their industries, which were hereditary in
the various families; for the Spartiatae, finally, social intercourse
was
the principle of their whole life, and in the rooms where they met at
their
simple meals, there stood resplendent one single statue as protecting
deity,
that of the god of laughter (Plutarch, Lycurgus, xxxvii.)
Lycurgus,
however, lays himself open to the reproach that he tried to fix these
existing
and so far sound conditions, and thus robbed the living organism of its
necessary elasticity; secondly, that on the substantial and strong
foundation
he erected a very fantastic structure. Here again we see the theorising
politician, the man who tries to decide by way of reasoning how things
must be, while as a matter of fact the function of logical reason is to
record and not to create. But to the fact that Lycurgus, in spite of
everything,
took historical data as his starting-point, are due that strength and
endurance
which his constitution enjoyed above those of the rest of Greece.
99
ROMAN LAW
stitution and gave it over to inevitable
decay and ruin. For the remarkable thing in pre-Caesarean Rome is not
that
the city had to experience so many violent internal storms — in the
case
of a structure so incomparably elastic that is natural, the clash of
interests
and the never-resting ambition of professional politicians saw to that
in Rome as elsewhere — no, what fills us with wonder and admiration is
rather the vitality of this constitution. Patricians and Plebeians
might
periodically be at each other's throats: yet an invisible power held
them
firmly together; as soon as new conditions were provided for by a new
compromise,
the Roman State stood once more stronger than ever. * Caesar was born
in
the midst of one of these severe crises; but perhaps it appears to us
in
history worse than all previous ones — both because it is nearer to us
in time, and we are therefore more fully
*
The
expression “Aristocracy and Plebs,“ which Ranke likes to use for
Patricians
and Plebeians, is to the layman most misleading. Niebuhr already
objected
to the confusion of Plebs and Pöbel (rabble). Patricians
and
Plebeians are rather like two powers in the one State, the one
certainly
privileged politically, the other the reverse in many ways (at least in
former times), both, however, composed of free, independent, altogether
autonomous yeomen. And for that reason Sallust can write, even of the
oldest
times: “The highest authority certainly lay with the Patricians, but
the
power most assuredly with the Plebeians“ (Letter to Caesar, i.
5);
we also see the Plebeians from earlier times play a great part in the
State,
and their families intermarry to a large extent with the Patricians.
The
uneducated man among us is therefore quite misled if he receives the
idea
that in Rome it was a question of an aristocracy and a proletariat. The
peculiarity and the remarkable vitality of the Roman State had its
foundation
in this, that it contained from the first two differentiable parts
(which
present in their political efficacy in many points an analogy to Whigs
and Tories, only that here it is a question of “born parties“), which,
however, had grown up together with the State through exactly the same
interests of property, law and freedom; from this the Romans derived,
internally,
continuous freshness of life, and in foreign affairs, perpetual
unswerving
unanimity. Of the Plebeian portions of the army Cato says, “viri
fortissimi
et milites strenuissimi“; they were indeed free-men, who fought for
their
own homes and hearths. In ancient Rome, as a matter of fact, only
freeholders
could serve in the army, and Plebeians held the rank of officer equally
with Patricians (see Mommsen: Abriss des römischen
Staatsrechtes,1893,
p. 258; and Esmarch: Römische Rechtsgeschichte, 3rd ed.,
p.
28 ff.).
100 ROMAN
LAW
informed of it, and because we know
the issue which Caesar brought about. I for my part consider the
interpretation
which the philosophy of history gives to these events a pure
abstraction.
Neither the rough hand of the impetuous, passionate Plebeian Marius nor
the tiger-like cruelty of the coolly calculating Patrician Sulla would
have inflicted fatal wounds upon the Roman constitution. Even the most
critical danger — the freeing of many thousands of slaves and the
bestowing
of citizenship on many thousands of those freed-men (and that for
political,
immoral reasons) — Rome would soon have surmounted. Rome possessed the
vitality to ennoble slavery, that is, to give it the definite Roman
character.
Only a mighty personality, one of those abnormal heroes of will, such
as
the world scarcely produces once in a thousand years, could ruin such a
State. It is said that Caesar was a saviour of Rome, snatched away too
soon, before he could finish his work: this is false. When the great
man
arrived with his army on the banks of the Rubicon, he is said to have
hesitatingly
commanded a halt and reflected once more on the far-reaching
consequences
of his action; if he did not cross, he himself would be in danger, if
he
did cross the boundary marked by sacred law, he would involve the whole
world (i.e., the Roman State) in danger: he decided for ambition
and against Rome. The anecdote may be invented, Caesar at least lets us
see no such inner struggle of conscience in his Civil War; but
the
situation is exactly described thereby. No matter how great a man may
be,
he is never free, his past imperatively prescribes the direction of his
present; if once he has chosen the worse part, he must henceforth do
harm,
whether he wills it or not, and though he raise himself to an
autocracy,
in the fond hope that he henceforth has it in his power to devote
himself
wholly to doing what is good, he will experience in himself that “the
might
of Kings is most effective in destruction.“ Caesar had written
101 ROMAN
LAW
to Pompey even from Ariminum to the
effect that the interests of the republic were nearer his heart than
his
own life; * and yet Caesar had not long been all-powerful to do good,
when
his faithful friend Sallust had to ask him whether he had really saved
or despoiled the republic? † At the best he had saved it as Virginius
did
his daughter. Pompey, as several contemporary writers tell us, would
allow
no one beside him, Caesar no one over him. Imagine what might have been
the
result for Rome if two such men, instead of being politicians, had
acted
as the servants of the Fatherland, as had been Roman custom hitherto!
It is not my business
to enter more fully into the subject briefly sketched here; my only
object
has been to show what a superficial knowledge we have of a people, if
we
study only the history of its politicians and generals. This is
particularly
the case with Rome. Whoever studies Rome merely from this point of
view,
no matter how industriously he may examine its history, can certainly
arrive
at no other result than did Herder, whose interpretation therefore will
remain classic. To this man of genius Roman history is “the history of
demons,“ Rome a “robbers' cave,“ what the Romans give to the world
“devastating
night,“ their “great noble souls, Caesars and Scipios,“ spend their
life
in murdering, the more men they have slaughtered in their campaigns,
the
warmer the praise that is paid them. ‡ This is from a certain point of
view correct; but the investigations of Niebuhr, Duruy and Mommsen
(especially
the last), as well as those of the brilliant historians of law in our
century
— Savigny, Jhering and many others — have brought to light another
Rome,
to the existence of which Montesquieu had been the first
* Civil
War, i. 9. Thoroughly Roman, by the way, to use such a commonplace
expression at such a time!
†
Second
Letter to Caesar.
‡ Ideen
zur Geschichte der Menschheit, Bk XIV.
102 ROMAN
LAW
to call attention. Here the important
thing was to discover and put in its right light what the old Roman
historians,
intent on celebrating battles, describing conspiracies, slandering
enemies
and flattering politicians who paid well, had passed by unnoticed or at
any rate had never duly appreciated. A people does not become what the
Romans have become in the history of mankind by means of murder and
robbery,
but in spite of it; no people produces statesmen and warriors of such
admirably
strong character as Rome did, if it does not itself supply a broad,
firm
and sound basis for strength of character. What Herder and so many
after
him call Rome can therefore be only a part of Rome, and indeed not the
most important part. The exposition of Augustine in the fifth book of
his
De
civitate Dei is, in my judgment, far happier; he calls attention
particularly
to the absence of greed and selfishness among the Romans and says that
their whole will proclaimed itself in the one resolution, “either to
live
free or die bravely“ (aut fortiter emori aut liberos vivere); and the
greatness
of the Roman power, as well as its durability, he ascribes to this
moral
greatness.
In the general
introduction to this book I spoke of “anonymous“ powers, which
shape
the life of peoples; we have a brilliant example of this in Rome. I
believe
we might say without exaggeration that all Rome's true greatness was
such
an anonymous “national greatness.“ If in the case of the Athenians
genius
unfolded itself in the blossom, here it did so in the trunk and the
roots;
Rome was of all nations that with the strongest roots. Hence it was
that
it defied so many storms, and the history of the world required almost
five hundred years to uproot the rotten trunk. Hence too, however, the
peculiar grisaille of its history. In the case of the Roman tree
everything
went to wood, as the gardeners say; it bore few leaves, still fewer
blossoms,
but
103 ROMAN
LAW
the trunk was incomparably strong; by
its support later nations raised themselves aloft. The poet and the
philosopher
could not prosper in this atmosphere, this people loved only those
personalities
in whom it recognised itself, everything unusual aroused its distrust;
“whoever wished to be other than his comrades passed in Rome for a bad
citizen.“ * The people were right; the best statesman for Rome was he
who
did not move one hair's-breadth from what the people as a whole wished,
a man who understood how to open the safety-valve now here, now there,
to meet the growing forces by the lengthening of pistons and by
suitably
arranged centrifugal balls and throttles, till the machine of State had
quasi-automatically increased its size and perfected its administrative
power; he must be, in short, a reliable mechanician: that was the ideal
politician for this strong, conscious people whose interests lay
entirely
in the practical things of life. As soon as any one overstepped this
limit,
he necessarily committed a crime against the common weal.
Rome, I repeat —
for this is the chief point to grasp, and everything else follows from
it — Rome is not the creation of individual men, but of a whole people;
in contrast to Hellas everything really great is here “anonymous“; none
of its great men approaches the greatness of the Roman people as a
whole.
And so what Cicero says in his Republic (ii. I) is very correct
and worth taking to heart: “The constitution of our State is superior
to
that of others for the following reason: in other places it was
individual
men who by laws and institutions founded the constitution, as, for
example,
Minos in Crete, Lycurgus in Lacedaemonia, in Athens (where change was
frequent)
at one time Theseus, at another Draco, then Solon, Clisthenes and many
others; on the other hand, our Roman Commonwealth is founded
*
Mommsen:
Römische
Geschichte, 8th ed., i. 24.
104 ROMAN
LAW
not on the genius of a single man but
of many men, nor did the span of a fleeting human life suffice to
establish
it, it is the work of centuries and successive generations.“ Even the
General
in Rome needed only to give free play to the virtues which his whole
army
possessed — patience, endurance, unselfishness, contempt of death,
practical
common sense, above all the high consciousness of civic responsibility
— and he was sure of victory, if not to-day, then to-morrow. Just as
the
troops consisted of citizens, their commanders were magistrates who
only
temporarily changed the office of an administrator or councillor and
judge
for that of commander-in-chief; in general too it made little
difference
when in the regular routine of office the one official relieved the
other
in command; the idea “soldier“ came into prominence only in the time of
decline. It was not as adventurers but as the most domiciled of
citizens
and peasants that the Romans conquered the world.
ROMAN
IDEALS
The question here
forces itself upon us: is it at all admissible to apply the term
conquerors
to the Romans? I scarcely think so. The Teutonic peoples, the Arabians
and the Turks were conquerors; the Romans, on the other hand, from the
day they enter history as an individual, separate nation are
distinguished
by their fanatical, warm-hearted, and, perhaps, narrow-minded love for
their Fatherland; they are bound to this spot of earth — not
particularly
healthy nor uncommonly rich — by inseverable ties of heart, and what
drives
them to battle and gives them their invincible power is first and
foremost
the love of home, the desperate resolve to yield up the independent
possession
of this soil only with their lives. That this principle entailed
gradual
extension of the State does not prove lust for conquest, it was the
natural
105 ROMAN
LAW
outcome of a compulsion. Even to-day
might is the most important factor in international law, and we have
seen
how in our century the most peaceful of nations, like Germany, have had
unceasingly to increase their military power, but only in the interests
of their independence. How much more difficult was the position of
Rome,
surrounded by a confused chaos of peoples great and small — close at
hand
masses of related races constantly warring against each other, farther
afield an ever-threatening unexplored chaos of barbarians, Asiatics and
Africans! Defence did not suffice; if Rome wished to enjoy peace, she
had
to spread the work of organisation and administration from one land to
the other. Observe the contemporaries of Rome and see what a failure
those
small Hellenic States were owing to the lack of political foresight;
Rome,
however, had this quality as no people before or after. Its leaders did
not act according to theoretical conceptions, as we might almost be
inclined
to believe to-day when we see so strictly logical a development; they
rather
followed an almost unerring instinct; this, however, is the surest of
all
compasses — happy he who possesses it! We hear much of Roman hardness,
Roman selfishness, Roman greed; yes! but was it possible to struggle
for
independence and freedom amid such a world without being hard? Can we
maintain
our place in the struggle for existence without first and foremost
thinking
of self? Is possession not power? But one fact has been practically
disregarded,
viz., that the unexampled success of the Romans is not to be looked
upon
as a result of hardness, selfishness, greed — these raged all around in
at least as high a degree as among the Romans, and even to-day no great
change has taken place — no, the successes of the Romans are based on
intellectual
and moral superiority. In truth a one-sided superiority; but what is
not
one-sided in this world? And it cannot be denied that in certain
respects
the Romans felt more
106 ROMAN
LAW
intensely and thought more acutely than
any other men at any time, and they were in addition peculiar in this,
that in their case feeling and thinking worked together and
supplemented
each other.
I have already
mentioned
their love of home. That was a fundamental trait of the old Roman
character.
It was not the purely intellectual love of the Hellenes, bubbling over
and rejoicing in song, yet ever prone to yield to the treacherous
suggestions
of selfishness; nor was it the verbose love of the Jews: we know how
very
pathetically the Jews sing of the “Babylonian captivity,“ but, when
sent
home full-handed by the magnanimous Cyrus, prefer to submit to fines
and
force only the poorest to return, rather than leave the foreign land
where
they are so prosperous; no, in the case of the Romans it was a true,
thoroughly
unsentimental love that knew few words, but was ready for any
sacrifice;
no man and no woman among them ever hesitated to sacrifice their lives
for the Fatherland. How can we explain so unmeasured an affection? Rome
was (in olden times) not a wealthy city; without crossing the
boundaries
of Italy one could see much more fruitful regions. But what Rome gave
and
securely established was a life morally worthy of man. The Romans did
not
invent marriage, they did not invent law, they did not invent the
constitutional
freedom-giving State; all that grows out of human nature and is found
everywhere
in some form and to some degree; but what the Aryan races had conceived
under these notions as the bases of all morality and culture had
nowhere
been firmly established till the Romans established it. * Had the
Hellenes
got too
*
For
the Aryan peoples in particular, see Leist's excellent Gräco-italienische
Rechtsgeschichte (1884) and his Altarisches Jus civile
(1896),
also Jhering's Vorgeschichte der Indoeuropäer. The
ethnical
investigations of the last years have, however, shown more and more
that
marriage, law and State exist in some form everywhere, even among the
savages
of least mental development. And this must be strongly emphasised, for
the evolution mania and the pseudo-scientific dogma-
107 ROMAN
LAW
near Asia? Were they too suddenly
civilised?
Had the Celts, who were by nature endowed with almost as much
tism of our century
have
brought into most of our popular books absolutely invented
descriptions,
which are very difficult to remove from them, in spite of the sure
results
of exact research; and from here these descriptions also force their
way
into valuable and serious books. In Lamprecht's famous Deutsche
Geschichte,
vol. i., for instance, we find what is supposed to be a description of
the social conditions of the old Teutonic peoples, sketched “under the
auspices of comparative ethnology“; here we are told of a time when
among
these peoples a “community of sex limited by no differences of any kind
prevailed, all brothers and sisters were husbands and wives to each
other
and all their children brothers and sisters, &c.“; the first
progress
from this state, as we are to suppose, was the establishment of the
mother's
right, the so-called Matriarchate — and so the tale continues
for
pages; one fancies one is listening to the first stuttering of a new
mythology.
As far as the mother-right is concerned (i.e., family name and
right
of inheritance after the mother, as the fatherhood was always a common
one), Jhering has convincingly shown that even the oldest Aryans,
before
the breaking off of a Teutonic branch, knew nothing of it (Vorgeschichte,
p. 61 ff.), and the very oldest parts of the Aryan language point
already
to the “supreme position of the husband and father of the household“
(Leist,
Gräco-ital.
Rechtsgeschichte, p. 58); that supposition therefore lacks every
scientific
basis. (This was meantime confirmed by Otto Schrader,
Reallexicon der
indogermanischen Altertumskunde, 1901, p. xxxiii.) It is still more
important to establish the fact that the “comparative ethnography“
appealed
to by Lamprecht has found community of sex nowhere in the world among
human
beings. In the year 1896 a small book appeared which summarises in
strictly
objective fashion all the researches that refer to this, Ernst Grosse's
Die
Formen der Familie und die Formen der Wirtschaft, and there we see
how the so-called empirical philosophers, with Herbert Spencer at their
head, and the so-called strictly empirical anthropologists and
ethnologists,
honoured as “authorities“ (with praiseworthy exceptions like Lubbock),
simply started from the à priori supposition that there
must
be community of sex among simpler peoples, since the law of evolution
demands
it, and then everywhere discovered facts to confirm this. But more
exact
and unprejudiced investigations now prove for one race after the other
that community of sex does not exist there, and Grosse may put down the
apodictic assertion: “There is, in fact, no single primitive people
whose
sexual relations approached a condition of promiscuity or even hinted
at
such a thing. The firmly knit individual family is by no means a late
achievement
of civilisation, it exists in the lowest stages of culture as a rule
without
exception“ (p. 42). Exact proofs are to be found in Grosse; besides,
all
anthropological and ethnological accounts of recent years testify how
very
much we have undervalued the so-called savages, how superficially we
have
observed and how thoughtlessly we have drawn conclusions about
primitive
conditions, of which we know absolutely nothing with surety,
108
ROMAN LAW
fire, become so savage in the wild North
that they were no longer able to construct anything, to organise
anything,
[Lately Heinrich
Schurtz,
in his Altersklassen und Männerbunde, eine Darstellung der
Grundformen
der Gesellschaft, 1902, has fully shown that the arguments for
promiscuity
in early times, which are wont to be drawn from phenomena of “free
love“
to-day, are to be interpreted quite differently, and that, on the
contrary,
“with the most primitive races marriage, and in connection with it the
formation of society on a purely sexual basis, is more strongly
developed“
(p. 200).] As this subject is essentially of the greatest importance
and
throws a peculiar and very noteworthy sidelight upon scientific modes
of
thought and power of thought in our century, I should like to add one
more
instructive example. The original inhabitants of central Australia are,
as is well known, supposed to belong to the most backward,
intellectually,
of all peoples; Lubbock calls them “wretched savages, who cannot count
their own fingers, not even the fingers of one hand“ (The
Prehistoric
Age, Germ. trans., ii. 151). One can imagine with what contempt the
traveller Eyre wrote of the “remarkably peculiar cases where marriage
is
forbidden“ in this wretched race, “where a man may not marry a woman
who
has the same name as he, even though she be by no means related to
him.“
Strange! And how could these people come to have such inexplicable
caprices
when it would have been their duty, according to the theory of
evolution,
to have lived in absolute promiscuity? Since that time two English
officials,
who lived for years among these savages and gained their confidence,
have
given us a detailed account of them (Royal Society of Victoria,
April 1897, summary in Nature, June 10, 1897), and it appears
that
their whole intellectual life, their “conceptive life“ (if I may say
so)
is so incredibly complicated that it is almost impossible for one of us
to comprehend it. These people, for example, who are supposed not to be
able to count up to five, have a more complicated belief than Plato
with
regard to the transmigration of souls, and this faith forms the basis
of
their religion. Now as to their marriage laws. In the particular
district
spoken of here there lives an ethnically uniform race, the Aruntas.
Every
marriage union with strange races is forbidden; thereby the race is
kept
pure. But the extremely baneful effects of long-continued inbreeding
(Lamprecht's
Teutons would long have become Cretins before ever they entered into
history!)
are prevented by the Australian blacks by the following ingenious
system:
they divide (mentally) the whole race into four groups; for simplicity
I designate them a b c d. A youth from the group a may
only
marry a girl from group d, the male b only the female c,
the male c only the female b, the male d only
the
female a. The children of a and d form once
more the
group b, those of b and c the group a,
those
of c and b the group d, those of d and a
the group c. I simplify very much and give only the skeleton,
for
I fear my European reader would otherwise soon reach the stage of
likewise
not being able to count up to five. That such a system imposes
important
restrictions on the rights of the heart cannot be denied, but I ask,
how
could a scientifically trained selector have hit upon a more ingenious
expedient to satisfy the two laws of breeding
109
ROMAN LAW
or to found a State? * Or was it not
rather that blood-mixtures within the common mother race, and at the
same
time the artificial selection necessitated by geographical and
historical
conditions tended to produce abnormal gifts (naturally with
accompanying
phenomena of reversion)? † I do not know. Certain it is, however, that
previous to the Romans there was no sacred, worthy and at the same time
practical regulation of matters
which are established
by
strict observation, namely, (1) the race must be kept pure, (2)
continuous
inbreeding is to be avoided? (see chap.
iv.). Such a phenomenon calls for reverence and silence. When
contemplating
it one gladly keeps silent regarding such systems as those already
mentioned
as belonging to the end of the nineteenth century. But what must we
feel
when we turn our glance from the extremely laboured efforts of these
worthy
Australian Aruntas to Rome and behold here, in the middle of a
frightful
world, the sacredness of marriage, the legal status of the family, the
freedom of the head of the household rising up out of the heart of the
people, for it was at a much later period that it was engraved on
bronze
tables?
*
Thierry,
Mommsen, &c.
†
Till
a short time ago it was a favourite practice to represent the
population
of Rome as a kind of medley of peoples living side by side: it was
supposed
to have borrowed its traditions from Hellenic units, its administration
from Etruscan ones, its law from Sabines, and its intellect from
Samnites,
&c. Thus Rome would have in a way been a mere word, a name, the
common
designation of an international trysting-place. This soap-bubble, too,
which rose from the brain foam of pale professors, has burst, like so
many
others, in Mommsen's hands. Facts and reason both prove the absurdity
of
such a hypothesis, “which attempts to change the people, which, as few
others, has developed its language, state, and religion purely and
popularly,
into a confused rubble of Etruscan, Sabine, Hellenic, and unfortunately
even Pelasgic ruins“ (Röm. Gesch., i. 43). The fact,
however,
that this thoroughly uniform and peculiar people originated from a
crossing
of various related races is undeniable, and Mommsen himself clearly
shows
this; he admits two Latin and one Sabellian race; at a later time all
kinds
of elements were added, but only after the Roman national character was
firmly developed so that it assimilated the foreign portion. It would,
however, be ridiculous to “assign Rome to the number of mixed peoples“
(see p. 44). It is quite a different thing to establish the fact
that the most extraordinary and most individual talents and the
sturdiest
power are produced by crossing. Athens was a brilliant example, Rome
another,
Italy and Spain in the Middle Ages equally so, just as Prussia and
England
prove it at the present day (more details in chap.
4). In this respect the Hellenic myth that the Latins were
descended
from Hercules and a Hyperborean maiden is very noteworthy as one of
those
incomprehensible traits of innate wisdom; whereas the desperate efforts
of Dionysius of Halicarnassus (who lived at the time of the
110
ROMAN LAW
relating to marriage and family; no
more was there a rational law resting on a sure foundation capable of
being
widened, or a political organisation able to resist the storms of a
chaotic
time. Though the simply constructed mechanism of the old Roman State
might
frequently be awkward in its working and require thorough repairs, it
was
yet a splendid structure well adapted to the time and to its purpose.
In
Rome, from the first, the idea of Law had been finely conceived and
finely
carried into effect; moreover its limitations were in keeping with the
conditions. Still more was this the cas with the family. This
institution
was to be found in Rome alone — and in a form more beautiful than the
world
has ever since seen! Every Roman citizen, whether Patrician or
Plebeian,
was lord, yea, king in his house: his will extended even beyond death
by
the unconditional freedom of bequest, and the sanctity of the last
testament;
his home was assured against official interference by more solid rights
than ours; in contrast to the Semitic patriarchate he had introduced
the
principle of agnation * and thereby swept entirely aside the
interference
of mothers-in-law and women as a whole; on the other hand, the
materfamilias
was honoured, treasured, loved like a queen. Where was there anything
to
compare with this in the world at that time? Outside of civilisation
perhaps;
inside it nowhere. And so it was that the Roman loved his home with
such
enduring love and gave his heart's blood for it. Rome was for him the
family
and the law, a rocky eminence of human dignity in the midst of a
surging
sea.
birth of Christ) to
prove
the descent of the Romans from Hellenes, “as they could not possibly be
of barbarian origin,“ shows with touching simplicity how dangerous a
conjunction
of great learning with preconceived opinions and conclusions of reason
can become!
* The
family resting upon relationship to the father alone, so that only
descent
from the father's side by males, and not that from the mother's side,
establishes
relationship at law. Only a marriage contracted in the right forms
produces
children who belong to the agnate family.
111 ROMAN
LAW
Let no one fancy
that anything great can be achieved in this world unless a purely ideal
power is at work. The idea alone will of course not suffice; there must
also be a tangible interest, even should it be, as in the case of the
martyrs,
an interest pertaining to the other world; without an additional ideal
element the struggle for gain alone possesses little power of
resistance;
higher power of achievement is supplied only by a “faith,“ and that is
what I call an “ideal impulse“ in contrast to the direct interest of
the
moment — be that last possession or anything else whatever. As
Dionysius
says of the ancient Romans, “they thought highly of themselves and
could
not therefore venture to do anything unworthy of their ancestors“ (i.
6);
in other words, they kept before their eyes an ideal of themselves. I
do
not mean the word “ideal“ in the degenerate, vague sense of the “blue
flower“
of Romance, but in the sense of that power which impelled the Hellenic
sculptor to form the god from out the stone, and which taught the Roman
to look upon his freedom, his rights, his union with a woman in
marriage,
his union with other men for the common weal, as something sacred, as
the
most valuable gift that life can give. A rock, as I said, not an
Aristophanic
Cloud-cuckoo-land. As a dream, the same feeling existed more or less
among
all Indo-Europeans: we meet with a certain holy awe and earnestness in
various forms among all the members of this family; the persevering
power
to results things practically was, however, given to no one so much as
to the Roman. Do not believe that “robbers“ can achieve results such as
the Roman State, to the salvation of the world, achieved. And when once
you have recognised the absurdity of such a view, search deeper and you
will see that these Romans were unsurpassed as a civilising power, and
that they could only be that because, though they had great faults and
glaring intellectual deficiencies, they yet possessed high mental and
moral
qualities.
112
ROMAN LAW
THE STRUGGLE
AGAINST THE SEMITES
Mommsen tells (i.
321) of the alliance between the Babylonians and the Phoenicians to
subdue
Greece and Italy, and is of opinion that “at one stroke freedom and
civilisation
would have been swept off the face of the earth.“ We should weigh
carefully
what these words mean when uttered by a man who commands the whole
field
as no one else does; freedom and civilisation (I should rather have
said
culture, for how can one deny civilisation to the Babylonians and
Phoenicians,
or even to the Chinese?) would have been destroyed, blotted out for
ever!
And then take up the books which give a detailed and scientific account
of the Phoenician and Babylonian civilisation, in order to see clearly
what foundation there is for such a far-reaching statement. It will not
be difficult to see what distinguishes a Hellenic “Colony“ from a
Phoenician
Factory: and from the difference between Rome and Carthage we shall
readily
understand what an ideal power is, even in the sphere of the driest,
most
selfish politics of interest. How suggestive is that distinction which
Jhering (Vorgeschichte, p. 176) teaches us to draw between the
“commercial
highways“ of the Semites and the “military roads“ of the Romans: the
former
the outcome of the tendency to expansion and possession; the latter the
result of the need of concentrating their power and defending the
homeland.
We shall also learn to distinguish between authentic “robbers,“ who
only
civilise in as far as they understand how to take up and utilise with
enviable
intelligence all discoveries that have a practical worth and to
encourage
in the interests of their commerce artificial needs in foreign peoples,
but who otherwise rob even their nearest relations of every human right
— who nowhere organise anything but taxes and absolute
113
ROMAN LAW
slavery, who in general, no matter where
they plant their foot, never seek to rule a country as a whole under
systematic
government, and, being alive only to their commercial interests, leave
everything as barbarous as they find it: we shall, as I say, learn to
distinguish
between such genuine robbers and the Romans, who, in order to retain
the
blessings that attend the order reigning in their midst, are compelled
— beginning from that unchanging centre, the home — slowly and surely
to
extend their ordering and clearing influence all round; they never
really
conquer (when they can help it); they spare and respect every
individuality;
but withal they organise so excellently that people approach them with
the prayer to be allowed to share in the blessings of their system; *
their
own splendid “Roman law“ they generously make accessible to
ever-increasing
numbers, and they at the same time unite the various foreign legal
systems,
taking the Roman as a basis, in order gradually to evolve therefrom a
“universal
international law.“ † This is surely not how robbers act. Here we have
rather to recognise the first steps towards the permanent establishment
of Indo-European ideals of freedom and civilisation.
*
One
of the last instances are the Jews who (about the year 1) came to Rome
with the urgent request that it should deliver them from their Semitic
sovereigns and make them into a Roman province. It is well known what
gratitude
they afterwards showed to Rome, which ruled them so mildly and
generously.
†
Esmarch,
in his Römische Rechtsgeschichte, 3rd ed., p. 185, writes
as
follows on the frequently very vaguely developed and defined jus
gentium:
“This law in the Roman sense is to be regarded neither as an aggregate
of accidentally common clauses, formed from a comparison of the laws
that
were valid among all the nations known to the Romans, nor as an
objectively
existing commercial law recognised and adopted by the Roman State; it
should
be regarded, according to its essential substance, as a system of order
for the application of private law to international relations, evolved
out of the heart of Roman popular consciousness.“ Within the several
countries
the conditions of law were as little changed as possible by the Romans,
one of the surprising proofs of the great respect which in the period
of
their true greatness they paid to all individuality.
114 ROMAN
LAW
Livy says with justice: “It was not
only by our weapons but also by our Roman legislation that we won our
far-reaching
influence.“
It is clear that
the commonly accepted view of Rome as the conquering nation above all
others
is very one-sided. Indeed even after Rome had broken with its own
traditions,
or rather when the Roman people had in fact disappeared from the earth,
and only the idea of it still hovered over its grave, even then it
could
not depart far from this great principle of its life: even the rough
soldier-emperors
were unable to break this tradition. And thus it is that the real
military
hero — as individual phenomenon — does not occur at all among the
Romans.
I will not make any comparisons with Alexander, Charles XII. or
Napoleon;
I ask, however, whether the one man Hannibal, as an inventive,
audacious,
arbitrary prince of war, has not displayed more real genius than all
the
Roman imperators taken together.
It need scarcely
be stated that Rome fought neither for a Europe of the future nor in
the
interests of a far-reaching mission of culture, but simply for itself;
but thanks to this very fact, that it fought for its own interests with
the reckless energy of a morally strong people, it has preserved from
sure
destruction that “intellectual development of mankind which depends
upon
the Indo-Teutonic race.“ This is best seen clearly in the most decisive
of all its struggles, that with Carthage. If Rome's political
development
had not been so strictly logical up till then, if it had not betimes
subdued
and disciplined the rest of Italy, the deadly blow to freedom and
civilisation
mentioned above would assuredly have been dealt by the allied Asiatics
and Carthaginians. And how little a single hero can do in the face of
such
situations of world-wide historical moment, although he alone, it may
be,
has taken a comprehensive view of them, is shown by the fate of
Alexander,
who having destroyed
115
ROMAN LAW
Tyre meditated embarking on a campaign
against Carthage, but at his early death left nothing behind but the
memory
of his genius. The long-lived Roman people, on the other band, was
equal
to that great task, which it finally summed up in the monumental
sentence,
delenda
est Carthago.
What laments and
moralisings we have had on the destruction of Carthage by the Romans,
from
Polybius to Mommsen! It is refreshing to meet a writer who, like
Bossuet,
simply says: “Carthage was taken and destroyed by Scipio, who in this
showed
himself worthy of his great ancestor,“ without any moral indignation,
without
the well-worn phrase that all the suffering which later befell Rome was
a retribution for this misdeed. I am not writing a history of Rome and
do not therefore require to sit in judgment on the Romans; but one
thing
is as clear as the noonday sun; if the Phoenician people had not been
destroyed,
if its survivors had not been deprived of a rallying-point by the
complete
destruction of their last city, and compelled to merge in other
nations,
mankind would never have seen this nineteenth century, upon which, with
all due recognition of our weaknesses and follies, we yet look back
with
pride, justified in our hopes for the future. The least mercy shown to
a race of such unparalleled tenacity as the Semites would have sufficed
to enable the Phoenician nation to rise once more; in a Carthage only
half-burned
the torch of life would have glimmered beneath the ashes, to burst
again
into flame as soon as the Roman Empire began to approach its
dissolution.
We are not yet free of peril from the Arabs, * who long seriously
threatened
our existence, and their
*
The
struggle which in late years raged in Central Africa between the Congo
Free State and the Arabs (without being much heeded in Europe) is a new
chapter in the old war between Semites and Indo-Europeans for the
supremacy
of the world. It is only in the last fifty years that the Arabs have
been
advancing from the East Coast of Africa into the interior and almost up
to the Atlantic Ocean; the famous Hamed ben Mohammed ben Juna, called
Tippu-Tib,
was for a long time absolute ruler of an immense realm which reached
almost
116 ROMAN
LAW
creation, Mohammedanism, is the greatest
of all hindrances to every progress of civilisation, hanging like a
sword
of Damocles over our slowly and laboriously rising culture in Europe,
Asia
and Africa; the Jews stand morally so high above all other Semites that
one may hardly name them in conjunction with these (their ancestral
enemies
in any case from time immemorial), and yet we should need to be blind
or
dishonest, not to confess that the problem of Judaism in our midst is
one
of the most difficult and dangerous questions of the day; now imagine
in
addition a Phoenician nation, holding from the earliest times all
harbours
in their possession, monopolising all trade, in possession of the
richest
capitals in the world and of an ancestral national religion (Jews so to
speak who had never known Prophets)...! It is no fantastic
philosophising
on history but an objectively demonstrable fact that, under such
conditions,
that which we to-day call Europe could never have arisen. Once more I
refer
to the learned works on the Phoenicians, but above all, because
available
to every one, to the splendid summary in Mommsen's Römische
Geschichte,
Book III. chap. i., “Carthage.“
straight across all
Africa
with a breadth of about 20 degrees. Countless tribes which Livingstone
in his time found happy and peace-loving have since then in some cases
been destroyed entirely — since the slave-trade to foreign parts is the
chief occupation of the Arabs and never, in the history of mankind, was
carried on to such an extent as in the second half of the nineteenth
century
— in other cases the natives have undergone a remarkable moral change
by
contact with Semitic masters; they have become cannibals, great stupid
children changed to wild beasts. It is, however, noteworthy that the
Arabs,
where they found it paid them, have revealed their culture, knowledge
and
shrewdness in laying out magnificent stretches of cultivated land, so
that
parts of the Congo river district are almost as beautifully farmed as
an
Alsatian estate. In Kassongo, the capital of this rich country, the
Belgian
troops found magnificent Arabian houses with silk curtains, bed-covers
of satin, splendidly carved furniture, silver ware, &c.; but the
aboriginal
inhabitants of this district had in the meantime degenerated into
slaves
and cannibals. A real tangible instance of the difference between
civilising
and spreading culture. (See especially Dr. Hinde: The
Fall
of
the Congo Arabs, 1897, p. 66 ff., 184 ff., &c.)
117
ROMAN LAW
The intellectual barrenness of this
people was really horrifying. Although destiny made the Phoenicians
brokers
of civilisation, yet this never inspired them to invent anything
whatever;
civilisation remained for them altogether something absolutely
external;
of what we call “culture“ they had not the least notion, even to the
last:
clad in magnificent garments, surrounded by works of art, in possession
of all the knowledge of their time, they continued as before to
practise
sorcery, offered human sacrifices and lived in such a pit of
unspeakable
vice that the most degraded Orientals turned in disgust from them. With
regard to their share in the spread of civilisation Mommsen says: “This
they have done more as the bird scatters the seed * than as the sower
sows
the corn. The Phoenicians absolutely lacked the power, possessed by the
Hellenes and even the Italic peoples, of civilising and assimilating
the
nations capable of being educated, with whom they came in contact. In
the
sphere of Roman conquest the Iberian and Celtic languages have
disappeared
before the Romance tongue; the Berbers of Africa speak the same
language
to-day as they did at the time of Hanno and the Barcidae. But the
Phoenicians
like all Aramaic peoples, in contrast to the Indo-Teutonic, lack above
all the impulse to form States — the brilliant idea of freedom that is
self-governing.“ Where the Phoenicians settled, their constitution was,
fundamentally, merely a “government of capitalists, consisting on the
one
hand of a city mob, without property, living from hand to mouth,
treating
the conquered people in the country districts as mere slave-cattle
without
rights, and on the other hand of merchant princes, plantation-owners
and
aristocratic governors.“ These are the men, this the fatal branch of
the
Semitic family, from which we have been saved by the brutal
*
Every
reader knows by what automatic process the bird unwittingly contributes
to the spread of plant life.
118 ROMAN
LAW
delenda est Carthago.
And even if it should be true that the Romans in this case listened
more
than was their wont to the mean promptings of revenge, perhaps even of
jealousy, all the more am I bound to admire the unerring certainty of
instinct
which induced them, even where they were blinded by evil passions, to
strike
down that which any cool, calculating politician gifted with the eye of
the prophet would have been bound to urge them to destroy for the
salvation
of mankind. *
A second Roman delenda
has for the history of the world an almost equally inestimable
importance:
the delenda est Hierosolyma. Had it not been for this
achievement
(which we certainly owe as much to the Jews who have at all times
rebelled
against every system of government as to the long-suffering Romans)
Christianity
would hardly ever have freed itself from Judaism, but
*
Mommsen,
who feels bound strongly to condemn the action of the Romans against
Carthage,
admits at a later point (v. 623) that it was in his opinion neither
lust
of empire nor of possession but fear and jealousy that prompted it.
This
very distinction is of importance for our reasoned view of the part
played
by Rome in the history of the world. If in a world which recognises
might
alone as the norm of international law, we can say with certainty of a
people that it was not greedy of possessions or power, it seems to me
that
we have given it a testimonial to its moral character which makes it
tower
high above all contemporary peoples. As regards “fear,“ it was
thoroughly
justified, and it is surely permitted to think that the Roman senate
formed
a more correct judgment of the situation than Mommsen. — The arbitrary
Caesar, of whom even his zealous friend Celius must say that he
sacrifices
the interests of the State to his personal ends, built Carthage again
at
a later time. And what did it become? The most notorious pit of vice in
the world, where all whose destiny cast them thither — Romans, Greeks,
Vandals — degenerated to the very marrow of their bones. Such
devastating
magic was still possessed by the curse which rested on the spot where
Phoenician
horrors had reigned supreme for five hundred years! From its houses of
evil repute there arose a mighty cry of indignation against everything
called civilisation: That it bore Tertullian and Augustine is the only
merit that we can attribute to this shortsighted and shortlived
creation
of Caesar. — To characterise the nineteenth century, let me quote the
opinion
of one who is among its so-called greatest historians. Professor
Leopold
von Ranke says: “The Phoenician element has by means of commerce,
colonisation
and, finally, also by war, in the main exercised a quickening influence
upon the Occident“ (Weltgeschichte, i. 542).
119 ROMAN
LAW
would have remained, in the first
instance,
a sect among sects. The might of the religious idea, however, would
have
prevailed in the end; as to that there can be no question: the enormous
and increasing spread of the Jewish Diaspora * before the time of
Christ
proves it;
*
Diaspora
is the name given to the widened Jewish community. Originally the term
was applied to those Jews who had preferred not to return from the
Babylonian
captivity, because they were better off there than in their home. Soon
there was no prosperous city in the world without a Jewish community;
nothing
is more erroneous than the widespread belief that it was the
destruction
of Jerusalem that first scattered the Jews over the world. In
Alexandria
and its neighbourhood alone there were reckoned to be under the first
Roman
emperors a million Jews, and Tiberius already recognised the great
danger
of this theocratic State in the midst of the legal State. The men of
the
Diaspora were keen and successful propagandists, and their considerate
adoption of men as “half Jews“ under remission of the painful
initiatory
ceremony, helped them greatly; in addition, material advantages
contributed
to their success, since the Jews pleaded their religion as an excuse
for
exemption from military service and a series of other burdensome civic
duties; but the Hebrew missionaries had the greatest success with
women.
Now it is a noteworthy fact that this international community, which
contained
Hebrews and non-Hebrews, and in which all shades of faith were
represented,
from the most bigoted Pharisaism to open scoffing irreligion, held
together
like one man as soon as it was a question of the privileges and
interests
of the common Jewry; the Jewish freethinker would not for the world
have
omitted to send in his yearly contribution to Jerusalem for the temple
offerings; Philo, the famous Neoplatonist, who believed in Jahve as
little
as in Jupiter, nevertheless represented the Jewish community of
Alexandria
in Rome in favour of the synagogues threatened by Caligula; Poppaea
Sabina,
the mistress and later the wife of Nero, though no Hebrew but a keen
member
of the Jewish Diaspora, supported the prayers of the Jewish actor
Alityrus,
the favourite of Nero, to root out the sect of the Christians, and
thereby
became very probably morally responsible for that frightful persecution
of the year 64, in which it is said that the apostles Peter and Paul
met
their death. The fact that the Romans, who otherwise at that time could
not distinguish Christians from orthodox Jews, were on this occasion
able
to do so accurately, is regarded by Renan as conclusive proof of this
charge,
which was made against the Diaspora even in the first century (in
Tertullian's
Apologeticus,
chap. xxi., for example, somewhat reserved but yet clear; see also Renan,
L'Antéchrist,
chap. vii.). Newer convincing proofs that up to Domitian's time, and so
till long after Nero's death the Romans regarded the Christians as a
Jewish
sect, are to be found in Neumand: Der römische Staat und die
allgemeine
Kirche (1890), pp. 5 ff. and 14 ff. That Tacitus distinguished
clearly
between Jews and Christians manifestly proves nothing in this matter,
as
he wrote fifty years after Nero's persecu-
120 ROMAN
LAW
we should therefore have received a
Judaism reformed by Christian influence and ruling the world. Perhaps
the
objection may be urged that that has come to pass, and that it
correctly
describes our Christian Church. Certainly, the objection is in part
justifiable;
no rightly thinking man will deny the share that Judaism has in it. But
when we see how in earliest times the followers of Christ demanded the
strict observance of the Jewish law,“ how they, less liberal than the
Jews
of the Diaspora, took into their community no “heathens“ who had not
submitted
to the mark of circumcision common to all Semites; when we think of the
struggles which the Apostle Paul (the Apostle of the heathen) had to
wage
till his death with the Jew-Christians, and that even much later, in
the
Revelation
of St. John (iii. 9) he and his followers are scorned as being “of
the synagogue of Satan which say they are Jews and are not, but do
lie“;
when we see the authority of Jerusalem and its temple continue to be
simply
invincible, even inside the Pauline Christendom, so long as both
actually
did stand intact, * then we cannot doubt that the religion of the
civilised
world would have pined under the purely Jewish primacy of the city of
Jerusalem,
if Jerusalem had not been destroyed by the Romans. Ernst Renan,
certainly
no enemy of the Jews, has in his Origines du Christianisme (iv.
chap. xx.) eloquently shown what an “immense danger“ would have lain
therein.
† Still worse than the commercial monopoly of the Phoenicians would
have
been the religious monopoly of the Jews; under the leaden weight of
these
born dogmatists and fanatics all freedom of thought and faith would have
tion and in his
narrative
transferred the knowledge of a later time to an earlier. (See,
too,
in connection with the “Jewish jealousy,“ Paul Allard: Le
Christianisme
et l'Empire romain de Néron à Théodose (1897),
chap. i.)
* Cf.
on this, Graetz, Volksth. Geschichte der Juden, i. 653.
† In
his Discours et Conférences‚ 3rd ed., p. 350, he calls
the
destruction of Jerusalem “un immense bonheur.“
121
ROMAN LAW
disappeared from the world; the flatly
materialistic view of God would have been our religion, pettifoggery
our
philosophy. This too is no imaginary picture, only too many facts speak
for it; for what is that rigid, illiberal, intellectually narrow
dogmatising
of the Christian Church — a thing undreamt of by the Aryan — what is
that
disgraceful, bloodthirsty fanaticism which runs through all the ages
down
to our own nineteenth century, that curse of hatred that has clung to
the
religion of love from the beginning and from which Greeks and Romans,
Indians
and Chinese, Persians and Teutonic peoples turn with horror? What is
it,
if not the shadow of that temple, in which sacrifices were offered to
the
god of anger and vengeance, a dark shadow cast over the youth of the
heroic
race “that from out the darkness strives to reach the light“?
Without Rome it is
certain that Europe would have remained a mere continuation of the
Asiatic
chaos. Greece always gravitated towards Asia, till Rome tore it away.
It
is the work of Rome that the centre of gravity of culture has been once
and for all removed to the west, that the Semitic-Asiatic spell has
been
broken and at least partly cast aside, that the predominantly
Indo-Teutonic
Europe became henceforth the beating heart and thinking brain of all
mankind.
While this State fought for its own practical (but, as we saw, not
unideal)
interests without the least regard for others — often cruelly, always
sternly,
but seldom ignobly — it has put the house in readiness, the strong
citadel
in which our race, after long aimless wanderings, was to settle down
and
organise itself for the salvation of mankind.
For the
accomplishment
of Rome's work so many centuries were necessary, and in addition so
high
a degree of that unerring, self-willed instinct, which hits the mark,
even
where it seems to be going senselessly astray, doing good even where
its
will is baneful, that it was not the fleeting existence of pre-eminent
individuals but
122 ROMAN
LAW
the dogged unity of a steel-hardened
people, working almost like a force of nature, that was the right and
only
efficacious thing. Hence it is that so-called “political history,“ that
history which tries to build up the life of a people from the
biographies
of famous men, the annals of war and diplomatic archives, is so
inappropriate
here; it not only distorts, but fails to reveal in any way those things
that are the most essential. For what we, looking back and
philosophising,
regard as the office or vocation of Rome in the history of the world,
is
surely nothing else than an expression for the bird's-eye view of the
character
of this people as a whole. And here we must admit that the politics of
Rome moved in a straight and — as later times have shown — perfectly
correct
line, so long as they were not in the hands of professional
politicians.
Caesar's period was the most confused and most productive of evil; both
people and instinct were then dead, but the work continued to exist,
and,
embodied with it, the idea of the work, but it was nowhere capable of
being
set apart as a formula and as a law for future actions, for the simple
reason that the work had not been reasoned, considered and conscious,
but
unconscious and accomplished of necessity.
ROME
UNDER THE EMPIRE
After the fall of
the true Roman people this idea — the idea of the Roman State — came
again
to life in very different ways in the brains of individuals who were
called
to power. Augustus, for example, seems really to have been of the
opinion
that he had restored the Roman republic, otherwise Horace would
certainly
not have gone the length of praising him for it. Tiberius, who
transformed
“the insult to the majesty of the Roman people,“ the crimen
majestatis,
which was punished
123 ROMAN
LAW
even in former times, into quite a new
crime, viz., “the insult to his own Caesarean person,“ took thereby a
very
great step towards dissipating into a mere idea the actual free State
created
by the people of Rome — a step from which in the nineteenth century we
have not yet gone back. But so firmly was the Roman idea planted in
every
heart that a Nero took his own life, because the Senate had branded him
an “enemy of the republic.“ Soon, however, the proud assembly of
Patricians
found itself face to face with men who did not tremble before the magic
words senatus populusque Romanus: the soldiers chose the bearer
of the Roman Imperium; it was not long before Romans, and Italians as
well,
were excluded for ever from this dignity: Spaniards, Gauls, Africans,
Syrians,
Goths, Arabs, Illyrians followed one another; not one of them probably
was even distantly related to those men who with sure instinct had
created
the Roman State. Amid yet the idea lived on; in the Spaniard Trajan it
even reached a climax of brilliancy. Under him and his immediate
followers
it worked so expressly as an ordering civilising power, resorting to
conquest
only where the consolidation of peace unconditionally demanded it, that
we are justified in saying that during the Antonine century Roman
imperialism
— which had lived in the people previously only as an impulse, not as
an
end in view — came to be conscious of itself, and that in a manner
which
was only possible in the minds of nobly thinking foreigners, who found
themselves face to face with a strange idea, which they henceforth
embraced
with full objectivity, in order to set it in operation with loyalty and
understanding. This period had a great influence on all future time;
wherever
with noble purpose the idea of a Roman Empire was again taken as a
starting-point,
it was done under the influence and in imitation of Trajan, Hadrian,
Antoninus
Pius and Marcus Aurelius. And yet there is a peculiar
124
ROMAN LAW
soullessness in this whole period. Here
the sway of understanding is supreme, the heart is dumb; the
passionless
mechanism affects even the soul, which does right not from love but
from
reason: Marcus Aurelius' “Monologues“ are the mirror of this attitude
of
mind, and the inevitable reaction appears in the sexual aberrations of
his wife Faustina. The root of Rome, the passionate love of the family,
of the home, was torn out; not even the famous law against bachelors,
with
premiums for children (Lex Julia et Papia Poppaea) could again make
marriage
popular. Where the heart does not command, nothing is enduring. And now
other foreigners usurped supreme power, this time men full of passion
but
devoid of understanding, African half-breeds, soldier Emperors, who saw
in the Roman State nothing more than a gigantic barracks, and had no
idea
why Rome in particular should be the permanent headquarters. The second
of them, Caracalla, even extended the Roman franchise to all the
inhabitants
of the Empire: thereby Rome ceased to be Rome. For exactly a thousand
years
the citizens of Rome (with whom those of the other cities of Italy and
of other specially deserving States had gradually been put on an equal
footing) had enjoyed certain privileges, but they had gained them by
burdensome
responsibility as well as by restless, incomparably successful, hard
work;
from now onward Rome was everywhere, that is, nowhere. Wherever the
Emperor
happened to be was the centre of the Roman Empire. Diocletian
transferred
his residence to Sirmium, Constantine to Byzantium, and even when a
separate
Western Roman Empire arose, the imperial capital was Ravenna or Milan,
Paris, Aachen, Vienna, never again Rome. The extension of the franchise
to all had another result: there were no longer any citizens.
Caracalla,
* the murderous, pseudo-Punic savage, used
*
For
an understanding of the character of Caracalla and his motives
125
ROMAN LAW
to be commended for his action and even
to-day he has his admirers (see Leopold von Ranke, Weltgeschichte,
ii. 195). In reality, however, he had, by cutting the last thread of
historical
tradition, i.e., of historical truth, destroyed also the last
trace
of that freedom, the indomitable, self-sacrificing and thoroughly ideal
power of which had created the city of Rome and with it Europe.
Political
law was, of course, henceforth the same for all; it was the equality of
absolute lawlessness. The word citizen (civis) gave way now to
the
term subject (subjectus): all the more remarkable, as the idea
of
being subject was as strange to all branches of the Indo-Europeans as
that
of supreme kingship, so that we see in this one transformation of the
legal
idea the incontestable proof of Semitic influence (according to Leist,
Gräco-italische
Rechtsgeschichte, pp. 106, 108). The Roman idea certainly still
lived
on, but it had concentrated itself or, so to speak, become merged in
one
person — the Emperor; the privileges of the Romans and their summary
I recommend the
little
book of Prof. Dr. Rudolf Leonhard, Roms Vergangenheit und
Deutschlands
Recht, 1889, pp. 93-99. He shows in the course of a few pages how
this
Syrian, “a descendant of the Carthaginian human butchers and the
countrymen
of those priests of Baal who were wont to throw their enemies into hot
ovens“ (the Jews did the same; see 2 Samuel, xii. 31),
had
adopted as his aim in life the annihilation of Rome and the destruction
of the still living remains of Hellenic culture, and at the same time
the
flooding of the cultured European world with the pseudo-Semitic refuse
of his home. This was all done systematically, maliciously and under
cover
of such phrases as universal franchise and religion of mankind. Thus in
one single day he succeeded in destroying Rome for ever; thus
unsuspecting
Alexandria, the centre of art and science, became a victim of the
raceless,
homeless bestiality that tore down all barriers. Let us never — never
for
a moment — forget that the spirit of Caracalla is among us and waiting
for its chance! Instead of repeating by rote the deceptive phrases
about
humanity which were the fashion even 1800 years ago in the Semitic salons
in Rome, we should do better to say with Goethe:
- Du musst steigen
oder sinken,
- Du musst herrschen
und gewinnen,
- Oder dienen und
verlieren,
- Leiden oder
triumphieren,
- Amboss oder Hammer
sein.
126 ROMAN
LAW
powers had not disappeared from the
world, they had all been delegated to a single man: that is the course
of events from Augustus to Diocletian and Constantine. The first Caesar
had been satisfied with uniting in his own hands all the most important
offices of State, * and that had been granted to him only for one
definite
object limited in respect of time, namely, to restore legal order in
the
civilised world (restauratio orbis); within three centuries
things
had come to this, that a single individual was invested not only with
all
offices but with all the rights of all the citizens. Just as in early
times
(at the time of the first successor to Augustus) the “majesty of the
people“
had become the “majesty“ of one man, so gradually each and every power,
each and every right passed over to him. Augustus had, like every other
citizen, still given his vote in the Comitia; now there sits a monarch
on the throne, whom one may only approach “reverentially“ on one's
knees,
amid before him all men are alike, for all, from the foremost statesman
to the lowest peasant, are his subjects. And while thus the “great
king“
and with him all that belonged to his Court continually increased in
riches
and dignity, the rest sank ever lower: the citizen could no longer even
choose his profession; the peasant, formerly the free proprietor of his
ancestral estate, was the bond-man of a master and bound to the soil;
but
death looses all bonds, and the day came when the tax-collector had to
mark what were formerly the most fertile parts of the Empire in their
papers
as agri deserti.
*
Augustus
was at once: (1) Princeps, that is, first citizen, at that time
really only a title of honour; (2) Imperator,
commander-in-chief;
(3) tribune of the people for life; (4) Pontifex maximus — the
highest
religious office, an office for life from earliest times; (5) Consul
— not, it is true, for life, but still in continuous possession of
consular
power; (6) likewise of proconsular power which embraced the government
of all the provinces; and (7) likewise of censorial power, which
embraced
the control of morals, the right to appoint and remove from the list
senators,
knights, &c.
127 ROMAN
LAW
It is not my
intention
to trace further through history the idea of the Roman State; something
will still have to be said on this matter in a later chapter; I shall
restrict
myself to reminding the reader that a Roman Empire — in idea a direct
continuation
of the old Imperium — legally existed till August 6, 1806, and that the
oldest Roman office, that of Pontifex maximus, which was held
by
Numa Pompilius himself, is still in existence; the Papal stool is the
last
remnant of the old heathen world which has continued to live to the
present
day. * If what I have briefly pointed out is known to all, it has been
brought forward in the hope that I might be able to demonstrate more
vividly
amid suggestively than could be done by theoretical analysis the
peculiarly
complicated form of the political legacy which our century received
from
Rome. Here as elsewhere in this book learned considerations have no
place;
these are to be found in histories of constitutional law; here I bring
forward only general observations, which are accessible and stimulating
to all. In purely political matters we have inherited from Rome not a
simple
idea, not even anything so simple as what is embraced by the phrase
“Hellenic
art,“ however full of meaning that may be, but on the other hand there
has come down to us a remarkable mixture of possessions of the greatest
reality — civilisation, law, organisation, administration, &c.; and
at the same time of ideas which, though we may not comprehend them, are
yet all-powerful; of notions which no one can fully grasp and which,
nevertheless,
for good and for evil, still influence our public life. We certainly
cannot
understand our own century thoroughly and critically, if we have not
clear
conceptions regarding this double political legacy.
*
Details
in vol. ii. chap. vii.
128 ROMAN
LAW
THE
LEGACY OF CONSTITUTIONAL LAW
Now that we have
discussed
political matters in the narrower sense, let us, before passing on to
the
consideration of Private Law, cast a glance at the constitutional and
ideal
legacy in general.
So long as Rome was
effectively engaged in positively creative work — more than five
hundred
years before Caesar and then for more than a century in its agony * —
it
might seem to us totally destitute of ideas; it only creates, it does
not
think. It creates Europe and destroys, as far as possible, Europe's
nearest
and most dangerous enemies. That is the positive legacy of this time.
The
countries, too, which Rome never subdued, as for example the greatest
part
of Germany, have received from Rome all the germs of constitutional
order,
as the fundamental condition of every civilisation. Our languages still
show us that all administration goes back to Roman teaching or
suggestion.
We live to-day in conditions so securely established by order that we
can
scarcely conceive that it was ever otherwise; not one among ten
thousand
of us has the faintest idea of the organisation of the machine of
State;
everything seems to us necessary and natural, law, morals, religion,
even
State itself. And yet the establishment of this, the ordered, secure
State,
worthy of free citizens, was — as all history proves — a task extremely
difficult to accomplish; India had a most noble religion, Athens
perfect
art, Babylonia a wondrous civilisation — everything had been achieved
by
the founding of a free and at the same time stable State that
guaranteed
conditions of law; for this Herculean task an individual hero did not
suffice,
a whole nation of heroes was necessary — each one strong enough to
command,
each one
*
The
issue of the Edictum perpetuum by Hadrian is perhaps the last
great
creative benefaction.
129
ROMAN LAW
proud enough to obey, all unanimous,
each one standing up for his own personal right. When I read Roman
history
I feel compelled to turn away with horror; but when I contemplate the
two
incomparable creations of this people, the ordered State and private
law,
I can only bow in silent reverence before such intellectual greatness.
But this heroic
people
died out, and after its complete extinction there came, as we saw, a
second
period of Roman politics. Foreigners occupied the supreme power and
foreign
lawyers became the masters of public law and constitutional law as well
as of the incomparable private law which had grown like a living thing,
and which they preserved, so to speak, in alcohol, in the wise
conviction
that it could not be made more perfect but at most might degenerate.
These
advisers of the crown were mostly natives of Asia Minor, Greeks and
Semites,
that is to say, the recognised masters in the handling of abstractions
and in juristic subtleties. And now there came an episode of the Roman
constitution in which, if nothing absolutely new was invented, there
were
many new interpretations, which were sublimated to principles, and then
crystallised into rigid dogmas. The process is very analogous to that
described
in the passage dealing with Hellenic art and philosophy. The Roman
republic
had been a living organism, in which the people was constantly and
industriously
introducing improvements; the formal question of leading “principles“
had
never arisen, the present had never wished to hold the future in
bondage.
That went so far that the highest officials of the law-court, the
praetors,
nominated for a year, each issued on his entry into office a so-called
“praetorian edict,“ in which he published the principles which he
intended
to follow in his administration of the law; and thus it became possible
to adapt the existing code to changing
130 ROMAN
LAW
times and conditions. Similarly
everything
in this State was elastic, everything remained in touch with the needs
of life. But exactly as the poetical inspirations of the Greek
philosophers
and their mystical interpretations of the Inscrutable had been
transformed
in Helleno-Semitic Alexandria to dogmas of faith, so here State and law
were changed to dogmas, and pretty much by the same people. We have
inherited
these dogmas, and it is important that we should know whence they come
and how they arose.
For example, our
idea of the monarch is derived neither from the Teutonic nations, nor
from
the Oriental despots, but from the learned Jurists who were in the
service
of the Illyrian shepherd Diocletian, of the Illyrian cowboy Galerius
and
of the Illyrian swineherd Maximinus, and is a direct parody — if the
truth
must be told — of the greatest State-ideas of Rome. “The State-idea
among
the Romans,“ writes Mommsen, “rests upon the ideal transmission of the
individual's capacity for action to the whole body of citizens, the populus,
and upon the submission on the part of each physical member of the
community
of his individual will to this universal will. The repression of
individual
independence in favour of the collective will is the criterion of a
constitutional
community.“ * To picture to oneself what is implied by this
“transmission,“
this “repression of individual independence,“ one must recall to memory
the uncontrollable, individual love of freedom characteristic of each
Roman.
Of the oldest legal monument of the Romans, the famous twelve bronze
tables
(450 B.C.), Esmarch says, “The most pregnant expressions in these
tables
are the guarantees of the autocracy of the private rights of Roman
citizens,“
† and when three hundred and fifty years later the first detailed
system
of law was
*
I
quote from the abridged edition of his Roman Constitutional Law in
Binding's
Systematisches
Handbuch der deutschen Rechtswissenschaft, p. 81 ff.
† Römische
Rechtsgeschichte, 3rd ed., p. 218.
131 ROMAN
LAW
compiled and written down, all the
storms
of the intervening period had caused no difference in this one point. *
As a free self-governing man the Roman accordingly transmits to the
collective
will, whose spontaneous member he is, as much of his freedom as is
necessary
for the defence of that freedom. “The collective will is now in itself,
if one is permitted to apply to it an expression of Roman private law,
a fiction of constitutional law. Representation is in fact required for
it. The action of will of the one man who represents it in the special
case is equivalent constitutionally to the action of the collective
will.
The constitutional act of will in Rome is always the act of one man,
since
will and action in themselves are inseparable; collective action by
majority
of votes is from the Roman point of view a contradictio in adjecto.“
In every clause of this Roman constitutional law one sees a nation of
strong,
free men: the representation of the common cause, that is, of the
State,
is entrusted for a definite time to individual men (consuls, praetors,
censors); they have absolutely plenary power and bear full
responsibility.
In case of need this conferring of absolute power goes so far that the
citizens nominate a dictator, all in the interest of the common weal
and
in order that the freedom of each individual may remain unimpaired. —
Now
the later emperors, or rather their advisers, did not, as one might
have
expected, overthrow this constitutional idea; no, they made it the
legal
foundation for monarchical autocracy, a thing unprecedented in history.
Elsewhere despots had ruled as the sons of gods, as for instance in
Egypt
and even at the present day in Japan — others, in former times and
to-day,
as representatives of God (I need only mention the Jewish kings and the
Khalifs) — others again by the so-called jus gladii, the right
of
the sword. But the soldiers who
* Certain
limitations
of the freedom of leaving property by will formed certainly a first
indication
of future times.
132 ROMAN
LAW
had usurped what had once been the Roman
Empire founded their claims to rule as absolute autocrats upon Roman
constitutional
law! They had not in their opinion usurped the power like a Greek
tyrant
and overthrown the constitutional order; on the contrary, the
all-powerful
monarch was the flower, the perfection of the whole legal development
of
Rome: this the Oriental jurists had by their subtlety contrived to
establish.
With the help of the transmission theory just explained, the trick had
been accomplished — in the main as follows. One of the main pillars of
Roman constitutional law is that no enactment has the force of law, if
it is not approved by the people. Under the first emperors appearances
were still maintained in this respect. But after Caracalla “Rome“ had
come
to mean the whole civilised world. And now all rights of the people
were
“transmitted“ to the Senate to simplify the issuing of new laws,
&c.
In the Corpus juris it stands thus: “As the Roman people has
grown
to such an extent that it would be difficult to call it together to one
spot for the purpose of approving laws, it was held to be right to
consult
the Senate instead of the people.“ As we now speak of a Viceroy, so the
Senate was called henceforth vice populi. The approval of the
Senate
too had become purely a matter of form — once in possession of so
beautiful
an abstract principle, there was no stopping half-way; and so the text
continues: “but that also which it pleases the Prince to decree has the
power of law, for the people has transmitted to him its whole plenitude
of power and all its rights.“ * We
*
Secs.
5 and 6, J. de jure naturali, i. 2. The last words of the
second
excerpt I have had to translate somewhat freely. The original is: “omne
suum imperium et potestatem“; how difficult it is to give these words
the
exact legal sense of ancient Rome can be seen in Mommsen, p. 85. Imperium
means originally “utterance of the will of the community“; hence the
bearer
of this absolute will was called imperator; more limited and
defining
rather the sphere of private law is potestas. Therefore I have
translated
them by plenitude of power and rights (German Machtfülle
and
Rechte),
and think I have thereby expressed the sense.
133 ROMAN
LAW
have here accordingly the strictly legal
derivation of an absolute monarchy and that too in the way in which it
certainly could be developed from the Roman constitution alone — with
its
rejection of the principle of majority and with its system of
transmitting
supreme power to individual men. * And this Roman “principate,“ as it
is
called, for the title of King was borne by no Caesar, forms to the
present
day the basis of all European kingships. By the introduction of
constitutionalism,
but still more by the manipulation of the law there is at present in
many
countries a movement back to the free standpoint of the ancient Romans;
but everywhere “monarchical rule“ is still in principle what the legal
authorities of the fallen Roman State had made it, an institution which
stands in direct contradiction to the true spirit of genuine Rome. The
army is not even at the present day the army of the people, defending
the
home of that people, it is everywhere (even in England) called the army
of the king; the officials are not appointed and invested with
authority
by the collective will, they are servants of the king. That is all
Roman,
but, as has been said, Roman of the cowboy, shepherd and swineherd age.
I unfortunately cannot go into greater detail here, but must refer my
readers
to the classical works of Savigny, Geschichte des römischen
Rechtes
im Mittelalter, and Sybel, Entstehung des deutschen
Königtums,
as also to Schulte, Deutsche Reichs- und Rechtsgeschichte.
Among
us the absolute monarchy has everywhere arisen through contact with the
Roman Empire. Formerly the Teutonic Kings had everywhere limited
rights;
the touchstone of high treason was either not recognised as a crime or
punished simply by a “wergild“ (Sybel, 2nd ed., p. 352); the nomination
of counts as officials of the king does not
*
As
a not unimportant fact, I may be allowed to mention that rule by
majority
is just as little Teutonic or Greek as it was Roman. (See Leist,
Gräco-italische
Rechtsgeschichte, pp. 129, 133 ff., 727.)
134 ROMAN
LAW
occur till the conquest of Roman lands,
in fact there is a long period in which the Teutonic kings have greater
authority over their Roman subjects than over their free Franks
(Savigny,
I., chap. iv. div. 3). — Above all the idea of a subject, the Roman subjectus,
is a legacy which still clings fast to us, and which should let us see
very clearly what to this day connects us with the Roman Empire at the
time of its fall, and how much still separates us from the genuine
heroic
people of Rome.
In all this I have
no wish to moralise in the interests of any tendency. The old Roman
forms
of government would not have been applicable to new conditions and new
men; indeed they no longer sufficed even for Rome itself when once it
had
extended its boundaries. Add to this that Christianity had arisen,
making
the suppression of slavery an obvious command. All that made a strong
kingdom
a necessity. But for the kings, slavery would never have been abolished
in Europe, the nobles would never have set their slaves free, they
would
rather have made free-born men their bondmen. The strengthening of the
kingly office has everywhere for a thousand years been the first
condition
of the strengthening of an ordered state of society and civic freedom,
and even to-day there is probably no country in Europe where an
absolutely
free plebiscite would proclaim as the will of the people any other form
of government than the monarchical. Public consciousness, too, is
penetrating
through the deceptive veils which sophists and pettifoggers have hung
round
it, and is recognising the genuine legal meaning of the King, namely,
the
old Roman view of the first official of State, glorified by that sacred
element which finds a not unsuitable mystical expression in the words,
“by the Grace of God.“ Many things which we have noticed around us in
the
nineteenth century justify us in believing that without a kingship and
without a special grace of God we could not, even to-day, rule
ourselves.
135 ROMAN
LAW
For that possibly not only the virtues
but also the faults of the Romans, and above all their excessive
intellectual
sobriety, were necessary.
However that may
be, we see that the legacy of political and constitutional law which
Rome
has given us forms a complicated and confused mass, and that
principally
for two reasons: first of all, because Rome, instead of flourishing
like
Athens for a short time and then disappearing altogether, lived on for
2500 years, first as a world-ruling State, later as a mighty
State-idea,
whereby what had been a single impulse broke up into a whole series,
which
frequently neutralised each other; in the second place, because the
work
of an incomparably energetic, Indo-European race was revised and
manipulated
by the subtlest minds of the West-Asiatic mixed races, this again
leading
to the obliteration of unity of character.
I hope that these
brief allusions with regard to the extraordinarily complicated
conditions
of universal history have sufficed to guide the reader. For clear
thinking
and lucid conception it is above all indispensable to separate rightly
and to connect rightly. This has been my endeavour, and to this I must
needs confine myself.
JURISPRUDENCE
AS A TECHNICAL ART
Besides this
legacy
which we have more or less unconsciously carried along with us, we
Europeans
possess an inheritance from Rome that has become more than any other
inheritance
from antiquity an essential element in our life and science, viz.,
Roman
law. By that we have to understand public law (jus publicum) and
private law (jus pvivatum). * To write about this is an
*
That
the public law of the Romans has not exercised upon us moderns the same
influence as the private does not justify us in leaving it unmentioned,
since a model of private law could not come into existence without an
excellent
public law.
136 ROMAN
LAW
easy task, inasmuch as this law is
available
to us in a very late codification, that of the Emperor Justinian,
dating
from the middle of the sixth century A.D. Besides, the efforts of
jurists
and historians have succeeded in tracing far back the growth of this
law,
and in recent years they have even been able on the one hand to
demonstrate
the connection of its origins with old Aryan law, and on the other to
follow
its fate in the various countries of Europe through centuries of vague
ferment up to the present day. Here we have accordingly definite and
clearly
sifted material, and a legal expert can easily prove how much Roman law
is contained in the law-books of our States to-day; it must also be
easy
for him to prove that the thorough knowledge of Roman law will for
indefinite
ages remain the canon of all strictly juridical thought. Here too in
the
Roman legacy we have to distinguish between two things: actual legal
tenets,
which have stood for centuries and to some extent are still valid, and
besides this a treasure of ideas and methods. The legal expert can
explain
all this easily, but only when he is speaking to those who know law.
Now
I am no authority on law (though I have industriously and lovingly
studied
its fundamental principles and the general course of its history), nor
am I entitled to suppose that my readers are informed on the subject;
my
task is therefore different and quite clearly defined by the purpose of
this book. It is only from a summary and universally human standpoint
that
I can venture briefly to indicate in what sense Roman law was in the
history
of the Indo-European nations a factor of such unparalleled significance
that it has remained a part of our culture to the present day.
Why is it utterly
impossible to speak of jurisprudence except to an audience equipped
with
a large store of technical juristical knowledge? This preliminary
question
will lead us at once to the heart of our subject, and
137 ROMAN
LAW
will point the way to a perhaps not
detailed, but at any rate accurate, analysis of what the Romans have
accomplished
in this department.
Law is a technical
subject: that is the whole answer. Like medicine, it is neither pure
science
nor pure art; and while every science in its results and every art by
the
impression which it makes can be communicated to all and so is in its
essentialities
common property, a technical subject remains accessible only to the
expert.
Cicero indeed compares jurisprudence with astronomy and geometry and
expresses
the opinion that “all these studies are in pursuit of the truth,“ * but
this is a perfect example of a logically false comparison. For
astronomy
and geometry investigate actual, fixed, unchangeable conditions, some
outside
of, others inside the mind, † whereas legal decisions are derived first
of all from the observation of variable, contradictory and ever
undefinable
tendencies, habits, customs and opinions, and jurisprudence as a
discipline
must according to the nature of things confine itself to the subject
before
it, formulating it more definitely, expressing it more exactly, making
it more intelligible by comparison, and — above all — classifying it
accurately
by the finest analysis and adapting it to practical needs. Law is, like
the State, a human, artificial creation, a new systematic arrangement
of
the conditions arising out of the nature of man and his social
instincts.
The progress of jurisprudence does not imply by any means an increase
of
knowledge (which must surely be the object of science), but merely a
perfecting
of the technical art; that is, however, a great deal and may presuppose
high gifts. An abundant material is thus consistently and with
* De
Officiis, i. 6.
† I
say this without any metaphysical arrière-pensée:
whether mathematical conceptions are judgments à priori
(as
Kant asserts) or not, every one will admit that geometry is the purely
formal activity of the mind, in contrast to the investigation of the
heavens.
138
ROMAN LAW
increasing skill employed by the human
will in working out the life-purpose of man.
I shall introduce
a comparison to make this clearer.
How conditional and,
consequently, how little to the purpose would be the statement that the
God who formed iron also caused the smithy to be built! In a certain
sense
the remark would be undeniably correct: without definite tendencies
which
impelled him to search further and further, without definite capacities
for invention and manipulation, man would never have attained to the
working
of iron; he did live long on the earth before he reached that stage. By
acuteness and patience he at last succeeded: he learnt how to make the
hard metal pliant and serviceable to himself. But here we have clearly
not to deal with the discovery of any eternal truth, as in the case of
astronomy and every genuine science, but on the one hand with patience
and skill, on the other hind with suitability to practical purposes; in
short, working iron is no science but, in the true sense of the Greek
word,
a technique, i.e., a matter of skill. And the conditions of
this
technique, since they depend on the human will (showing their
relationship
with art), vary with the times, with the tendencies and the habits of
races,
just as on the other hand they are influenced by the progress of
knowledge
(showing their relationship with science). In the nineteenth century,
for
example, the working of iron has passed through great changes which
would
have been inconceivable but for the progress of chemistry, physics,
mechanics
and mathematics; a practical art may thus demand manifold scientific
knowledge
from those who pursue it — but it does not for all that cease to be a
practical
art. And because it is a practical art, it can be learned by any one,
however
poor his mental endowments, provided only he has some skill, whereas on
the other hand it is a dead letter even for the more gifted of men if
he
has not made himself familiar with its methods.
139 ROMAN
LAW
For while science and art contain
something
which is of interest to every intelligent person, an applied art is
merely
a method, a procedure, a manipulation, something artificial and not
artistic,
an application of knowledge, not really knowledge itself, a power, yet
not a creative power, and so only that which is produced by it, i.e.,
the finished object, in which there is nothing technical left, can
claim
universal interest.
It is exactly the
same with jurisprudence, with this one difference, that the material
here
to be worked up is purely intellectual. In principle jurisprudence is
and
remains an applied art, and many an almost ineradicable
misunderstanding
would have been avoided if the legal authorities had not lost sight of
this simple fundamental truth. From Cicero to the present day *
excellent
jurists have only too often looked upon it as their duty to claim for
their
branch of study the designation “science,“ cost what it might; they
seem
to fear that they will be degraded if their claims are held to be
absurd.
Naturally people will continue to speak of a “science of law“; but only
in the derived sense; the mass of the material on law, history of law,
&c., is so gigantic that it, so to speak, forms a little world for
itself, in which research is made and this research is called science (Wissenschaft).
But this is obviously an improper use of the word. The root “vid“
denotes
in Sanscrit to find; if language is not to pale into colourless
ambiguity,
we must see to it that a knowing (Wissen) always denotes a
finding.
Now a finding presupposes two things: in the first place, an object
which
is and exists before we find it; and secondly, the fact that this
object
has not yet been found and discovered; neither of the two things can be
said of jurisprudence; for “law“ does not exist till men make it, nor
does
it exist as a subject outside of our consciousness; besides, the science
* See,
for example, Holland; Jurisprudence, 6th ed., p. 5.
140 ROMAN
LAW
of law does not reveal or find anything
but itself. And so those ancient authorities were perfectly right who,
instead of speaking of juris scientia, preferred to say
juris
notitia, juris peritia, juris prudentia, that is, practically,
knowledge,
skill, experience in the manipulation of law.
NATURAL
LAW
This difference is
of far-reaching importance. For it is only when we have recognised what
law essentially is, that we can follow its history intelligently and
comprehend
the decisive importance of Rome in the development of this applied art.
Now and now only can we not merely cut but untie that Gordian knot, the
question of natural law. This great question, which has been the
subject
of dispute for centuries, arises solely and simply from a
misunderstanding
of the nature of law; whether we answer it by yes or no does not help
us
out of the maze. Cicero, in the confused manner peculiar to him, has
used
all sorts of oratorical flourishes on this subject; at one time he
writes:
in order to explain law, one must investigate the nature of man — there
he seemed to be on the right track; immediately after he says that law
is a “sublime reason“ which exists outside of us and is “implanted in
us“;
then again we hear that law “arises out of the nature of things“;
finally,
that it was “born simultaneously with God, older than mankind.“ * I do
not know why these quibbling platitudes are quoted everywhere; I do so
merely lest I should be reproached with having heedlessly passed by so
famous a fount of wisdom; however, I would draw the reader's attention
to Mommsen's verdict: “Cicero was a journalist in the worst sense of
the
term, over-rich in words, as he himself confesses, and beyond all
imagination
poor in thoughts.“ † It was worse when
* De
legibus, i. 5 and 6, ii. 4, &c.
† Römische
Geschichte, iii. 620.
141 ROMAN
LAW
their Asiatic love of dogmatism and
stickling for principle induced the really important legal teachers of
the so-called “classical jurisprudence“ to formulate clearly the quite
un-Roman idea of a natural law and to introduce it systematically.
Ulpian
calls natural law that “which is common to animals and men.“ A
monstrous
thought! Not merely in art is man a free creator, in law too he proves
himself a magnificent inventor, an incomparably skilled, thoughtful
workman,
the forger of his own fate. Roman law is as characteristic a creation
of
the one individual human spirit as Hellenic art. What would be said of
me if I were to speak of a “natural art“ and then tried to draw an
analogy,
however far-fetched, between the spontaneous chirping of a bird and a
tragedy
of Sophocles? Because the jurists form a technical guild, many of them
have for centuries talked nonsense like this without the world noticing
it. Gaius, another classical authority whom the Jews claim as their
countryman
and who, history tells us, was “not deep but very popular,“ gives a
less
extravagant but equally invalid definition of natural law: he
identifies
it with the so-called jus gentium, that is, with the “common
law“
which grew out of the legal codes of the various races of the Roman
provinces;
in ambiguous words he explains that this law was common to “all nations
of the earth“: a fearful assertion, since the jus gentium is
just
as much the work of Rome as its own jus civile and represents
only
the result of the systematising activity of Roman jurisprudence amidst
the confusion of contradictory and antagonistic codes. * The very
existence
of the jus gentium beside and in contrast to the Roman jus
civile,
as well as the confused history of the origin of this “Law of nations,“
should have made clear to the dullest eye that there is not one law but
many; also that law is not an entity, which can be
* See
p.
113.
142 ROMAN
LAW
scientifically investigated, but a
product
of human skill, which can be viewed and carried out in very different
ways.
But the ghost of natural law still merrily haunts certain brains; for
example,
legal theorists, as far apart as Hobbes and Rousseau, agree in this one
idea; but the greatest achievement was the famous Hugo Grotius'
division
in natural, historical, and divine law, which makes one ask whether
then
the divine law was unnatural? or the natural a work of the devil? It
needed
the brilliant intellect and the outspoken impertinence of a Voltaire to
venture to write: “Rien ne contribue peut-être plus à
rendre
un esprit faux, obscur, confus, incertain, que la lecture de Grotius et
de Pufendorf.“ * In the nineteenth century, however, this pale
abstraction
has been sharply attacked; the historians of law, and with them the
brilliant
theorist Jhering, have dealt the finishing blow. For this all that was
really necessary was to understand that law is an applied art.
Considered from this
point of view it is easy to comprehend that in reality the idea
“natural
law“ (jus naturae) contains a flagrant contradictio in
adjecto.
As soon as a legal agreement is come to among men — it does not at all
need to be written, a convention silent or by word of mouth is in
principle
the same thing as a bulky civil code of law — for the state of nature
has
ceased; but if the pure natural impulse still prevails, eo ipso
there is no law. For even if men in a natural state were to live
together
in association, no matter how mild and humane they might be towards one
another, there would be no law, no jus; there would be just as
little
law as if the brutal power of the fist were the decisive factor with
them.
Law is a regulation of the relations of an individual to others,
artificially
arranged and enforced upon him by the community. It is an em-
* Dictionnaire
philosophique. J. J. Rousseau, too, calls Grotius “un enfant,
et qui pis est, un enfant de mauvaise foi“ (Emile, v.).
143
ROMAN LAW
ployment or these instincts which impel
man to live together in societies, and, at the same time, of that
necessity
which forces him nolens volens to unite with his like: love and
fear, friendship and enmity. If we read in the dogmatic metaphysicians,
“Law is the abstract expression of the general will, existing of its
own
accord and for its own benefit,“ * we feel that we are getting air
instead
of bread to eat; when the great Kant says, “Law is the essence of the
conditions
under which the arbitrary will of the one can be harmonised with that
of
the other according to a universal law of freedom,“ † we must at once
see
that this is the definition of an ideal, the definition of a possible
or
at least thinkable state of law, but not an all-embracing definition of
law in general, as it presents itself to us; besides, it contains a
dangerous
error. It is indeed a fallacy to suppose arbitrary will in the soul of
the individual and then to construe law into a reaction against it;
rather
every individual manifestly acts according to the necessity of his
nature,
and the element of arbitrariness only comes in with the measures
whereby
this natural action is restricted; it is not the natural man that is
arbitrary,
it is the man of law. If we wished to attempt a definition with Kant's
ideas as basis, we should have to say: Law is the essence of the
arbitrary
conditions, which are introduced into a human society, in order that
the
necessary action of one man may be counterbalanced by the necessary
action
of another and so harmonised as to give as large an amount of freedom
as
possible. The simplest formulation of the idea would be as follows:
Arbitrariness
in place of instinct in the relations of men to men is law. And by way
of explanation it would have to be added that the non plus ultra
of arbitrariness consists in declaring an arbitrarily established form
(for punishment, buying,
*
Hegel,
Propädeutik,
Kursus i. § 26.
† Metaphysische
Anfangsgrunde der Rechtslehre, Einleitung, § B.
144 ROMAN
LAW
marriage, testaments, &c.,) to be
henceforth and for ever unchangeable, so that all actions thereby
covered
are invalid and have no legal support, whenever the prescribed form is
not observed. Law is accordingly the lasting rule of definite arbitrary
relations between men. Moreover, it is unnecessary to enter into
speculations
with regard to quite unknown prehistoric times, in order to see jus
in simple forms, where this central element of arbitrariness clearly
appears;
we need only to look at the inhabitants of the Congo State to-day.
Every
little tribe has its chief; he alone decides matters of law and his
decision
is irrevocable. The legal disputes which occupy him are under such
simple
conditions of a very simple nature; they have to deal mostly with
crimes
against life and property; the penalty is death, seldom slavery; if the
chief by motion of hand has given his decision against the accused, the
latter is hacked into a hundred pieces by the bystanders and then
eaten.
The ideas of law therefore are very elementary on the Congo; and yet
the
idea of law is there; the natural man, that is, the man acting
instinctively,
would himself kill the supposed murderer or thief; here he does not do
that, the criminal is dragged to the place of assembly and judged.
Similarly
the chief decides disputes of inheritance and the regulation of
boundaries.
The unlimited arbitrary power of the chief is accordingly the “law“ of
the land, it is the cement by which society is held together, instead
of
falling to pieces in a lawless condition of nature. * The progress of
law
lies in the practical development and the ethical clarification of this
arbitrary element. †
*
I
have no doubt that there, too, certain rules are rendered sacred by
custom
and binding also on the chief, but legally he is quite free; only the
fear
of being roasted and eaten himself can restrain him from any arbitrary
procedure.
† In
reference to law as a “living power,“ as the product of “the creative
thoughts
of great individualities,“ in contrast to all the dogmatics of the
supposed
law of nature, read the interesting lecture of
145 ROMAN
LAW
ROMAN
LAW
I think we have
now
sufficient material to enable us without technical discussions, and at
the same time without phrase-making, to understand the special merits
of
the Roman people in regard to law, or at least the special character of
those merits. The nature of our legacy will at the same time be exactly
characterised.
If law is not an
inborn principle nor an exact science capable of investigation, but a
useful
adaptation of human capabilities to the building up of a society fitted
for civilisation, then it is clear from the first that there will be
and
must be codes of law varying very much in value. Fundamentally a law
will
be influenced principally by two forces from which it will receive its
characteristic colouring: first, by the moral character of the people
in
whose midst it comes into force, and, secondly, by the analytical
acuteness
of that people. By the happy union of both — a union occurring only
once
in the history of the world — the Roman people found themselves in a
position
to build up a legal code of great perfection. * Mere egoism, the greed
of possession, will never suffice to found
Prof. Eugen Ehrlich, Freie
Rechtsfindung und freie Rechtswissenschaft, Leipzig, 1903.
* The
assertion that history constantly repeats itself belongs to the
countless
untruths which are in circulation as wisdom among the “nonocentists.“
Never
in history — as far as our knowledge goes — has anything repeated
itself,
never! Where is the repetition of Athens and Sparta? of Rome? of Egypt?
Where has the second Alexander flourished? where a second Homer?
Neither
nations nor their great men return again. And so mankind does not
become
wiser by “experience“; the past offers it no paradigm for the present
to
form its judgment; it is made worse or better, wiser or more foolish,
simply
by the influences that are brought to bear on its intellect and
character.
Gutzkow's Ben Akiba was fundamentally wrong in his famous remark, “All
has occurred before“! Such an ass as he himself never lived before,
and,
it is to be hoped, will never appear again. And even if this were so,
it
would only be the repetition of the individual who under new
circumstances
would commit new follies for our amusement.
146 ROMAN
LAW
a lasting code of law; we have rather
learned from the Romans that the inviolable respect for the claims of
others
to freedom and possession is the moral foundation upon which alone we
can
build for all time. One of the most important authorities on the Roman
law and people, Karl Esmarch, writes: “The conscience of the Italian
Aryans
in regard to right and wrong is strong and unadulterated; in
self-control
and, when necessary, self-sacrifice, that virtue of theirs which
springs
from inner impulse and is supported by a most profound inner nature
reaches
its culmination.“ Because he knew how to rule himself the Roman was
qualified
to rule the world and to develop a strong idea of the State; by the
fact
that he could sacrifice his own interests to the universal weal, he
proved
his capacity to establish valid principles in regard to the rights of
private
property and of individual freedom. But these high moral qualities had
to be supported by exceptional intellectual qualities. The Romans,
quite
insignificant in philosophy, were the greatest masters in the
abstraction
of firm principles from the experiences of life — a mastery which
becomes
specially remarkable when we compare other nations with them, as, for
example,
the Athenians, who, though marvellously gifted, and delighting in legal
quarrels and sophistical law riddles, never were anything but
blunderers
in this branch of thought. * This peculiar capacity, to elevate
definite
practical relations to clearly defined principles implies a great
intellectual
achievement; for the first time order and lucidity of arrangement were
brought into social conditions, just as language, by the formation of
abstract
collective words, had made higher systematic thinking possible. It is
no
longer a question of vague instincts nor of obscure and changing
conceptions
of justice and injustice; all relations stand definitely grouped before
our
* Cf.
Leist, Gräco-italische Rechtsgeschichte, p. 694, and for
the
following quotation, p. 682.
147
ROMAN LAW
eyes, and these relations are to be
regulated by the invention of new legal rules or the further
development
of those already existing. And since life gradually widens experience,
or itself assumes more complicated forms, the Roman acuteness little by
little inside the individual “groups“ discovers the “species.“ “In
point
of fine, carefully pondered ideas of right, Roman law is and will
remain
the permanent teacher of the civilised world,“ says Professor Leist,
the
very man who has done more than any other to prove that the
Universities
should give up the present one-sided Roman standpoint of history of law
and should teach students to recognise Roman law as a link in the
chain,
as one of the steps “which the Aryan mind has mounted in the clearing
up
of legal conceptions.“ The more carefully we study the numerous
attempts
at legislation previous to and contemporary with the Roman, the more we
recognise what incomparable services were rendered by Roman law and
realise
that it did not fall from heaven but was the creation of the intellects
of grand and sturdy men. One thing must not be overlooked: in addition
to the qualities of self-control, of abstraction, and the finest
analysis,
the Roman possessed a special gift of plastic shaping. Here appears
their
relationship to Hellenism, which we seek in vain elsewhere. The Roman
too
is an artist of mighty creative power — an artist in the clear, plastic
shaping of the complicated machine of State. No theorist in the world
could
have thought out such an organism of State, which perhaps should rather
be pointed to as a work of art than as a work of reason. He is still
more
an artist in the plastic working out of his conceptions of law. Highly
characteristic too is the manner in which the Roman strives to give
visible
expression to his artistically moulded conceptions even in legal
actions,
everywhere “to give an outward expression to the inner diversity, to
bring
what is inward, so to speak, to the sur-
148
ROMAN LAW
face.“ * Here we have a decidedly
artistic
instinct, the outcome of specifically Indo-European tendencies. In this
artistic element too lies the magic power of the Roman legacy; that is
the indestructible and ever incomparable part of it.
On one point indeed
we must be quite clear; — Roman law is just as incomparable and
inimitable
as Hellenic art. Our ridiculous Germanomania will make no change in
that.
People tell marvels about a “German law,“ supposed to have been stolen
from us by the introduction of the Roman; but there never was a German
law, but merely a chaos of rude contradictory laws, a special one for
each
tribe. It is also absolutely inaccurate to speak of “adopting“ Roman
law
between the thirteenth and the sixteenth centuries; for the Teutonic
peoples
have “adopted“ continuously from the time when they first came into
contact
with the Roman Empire. Burgundians and East Goths as early as the fifth
century of the Christian era (or at the very beginning of the sixth)
introduced
modified (corrupted) forms of Roman law, † and the oldest sources of
Saxon,
Frankish, Bavarian and Alemannic law, &c., are so interlarded with
Latin words and half-understood principles, that the need of a reasoned
codification of law is only too apparent. One might well relegate
German
law as an ideal to the future, but to seek it in the past is
hypocritical
twaddle. ‡ Another hindrance
*
For
examples, read the splendid chapter Plastik des Rechtes in
Jhering's
Geist
des römischen Rechtes, § 23. Of the modern undramatic
life
of law, Jhering says: “One would have liked to give law, instead of a
sword,
a quill as its attribute, for the feathers were scarcely more necessary
to the bird than to it, except that in the case of law the attribute
produced
the opposite effects and speed stood in converse relation to the amount
of feathers employed.“
†
Savigny,
Geschichte
des römischen Rechtes im Mittelalter, chap. i.
‡ I
know no more conclusive proof of the original incapacity of the
Teutonic
peoples to judge acutely in questions of law than that such a man as
Otto
the Great could not decide, otherwise than by a duel, the fundamental
question
whether descendants should inherit or not;
149 ROMAN
LAW
to the proper estimation of Roman law
is due to the frenzy produced by the dogma of evolution, which has led
to such confusion of thought in the nineteenth century. The feeling for
the Individual, the established view that the Individual alone has
everlasting
importance, has been seriously injured by it. Although the only
effective
powers that history reveals are absolutely individualised nations and
great
personalities that never recur, the theory of evolution leads to the
idea
that capacities and beginnings were everywhere identical and that
essentially
analogous structures must “develop“ from these same germs. The fact
that
this never happens and that Roman law, for example, came into being
once
for all, does not disturb our dogmatists in the least. With this is
connected
the further conception of unceasing progress towards “perfection,“ in
consequence
of which our law must as a matter of course surpass the Roman, because
it is later, and yet nature never offers an example of development
taking
place in anything living without entailing a corresponding loss. * Our
civilisation stands high above the Roman; in respect of the vividness
of
our legal sense, on the other hand, an educated man of the nineteenth
century
can certainly not come up to a Roman peasant of the year 500 B.C. No
one
who has any thinking power and knowledge will dispute that. I said in
relation
to law, not to justice. When Leist writes, “The unprejudiced inquirer
will
not find that the present age as compared with the Roman has made such
glorious advance in the practice or even in the knowledge of real
justice,“
† he makes a remark well worth taking to heart; but I quote these words
this judgment of
Heaven
was then adopted as a piece of law for good by a pactum sempiternum!
(See Grimm, Rechtsaltertümer, 3rd ed. p. 471.)
* The
detailed proof that the ideas of a progress and decline of humanity
have
no concrete significance will be found in the ninth chapter.
† Gräco-italische
Rechtsgeschichte, p. 441.
150 ROMAN
LAW
to make it clear that I do not here
speak of justice, but of law, and to ensure that the difference between
the two may be obvious. Our noble conception of the duties of humanity
points, I am sure, to more enlightened ideas with regard to justice;
the
legal sense is, however, quite a different thing and is neither proved
nor promoted even by the possession of the most perfect and yet
imported
systems of law.
To understand how
incomparable was the achievement of the Romans, one circumstance must
certainly
not be overlooked: the Justinian corpus juris with which we are
familiar is only the embalmed corpse of Roman law. * For centuries
skilled
legal authorities kept in it a semblance of life by galvanic means; now
all civilised nations have worked out a law of their own; but this
would
not have been possible without the Roman, we all lack the necessary
talent.
A single observation will suffice to show the cleft between the Romans
and ourselves: Roman law of the real heroic period was firm as a rock
but
nevertheless incredibly elastic — “incredibly,“ I mean, to our modern,
timid conceptions, for we have taken everything from that law, except
its
living character. The Roman law was always “in a state of growth,“ and
capable, thanks to certain brilliant contrivances, of adapting itself
to
the changing needs of the times. The law, which in the fifth century
B.C.
was in its general outlines engraved in bronze tables by the decemvirs
nominated for that purpose, was not a new and improvised code, nor one
which from that time forth was immutable, but was more or less a
codification
of already existing laws which had grown up historically; the Romans
knew
how to invent ways and means to keep it even then from crys-
*
Francis
Bacon points out how inferior the corpus juris of Justinian is
to
the genuine Roman law, and blames so “dark an age“ for taking the
liberty
of laying hands upon the work of so “brilliant an age“ in order to
improve
it. (See the dedication of the Law Tracts.)
151 ROMAN
LAW
tallising. In dealing with the Twelve
Tables, for example, the officials did good service by their acumen in
“interpreting“ — not with the object of twisting the statutes to suit
some
special purpose, but of adapting them half-automatically to wider
conditions;
brilliant inventions — as, for example, that of the legal “fiction,“ by
which means were found (if I may express myself as a layman) of putting
to use existing legal norms to forestall others that were not yet
existent
— and constitutional arrangements, like those of the Praetors, by which
a place was assured to that law of custom which is so necessary in a
living
organism, till the best law has been provided by practice, arrangements
by means of which the jus gentium also gradually developed in
close
touch with the narrower Roman jus civile — all these things
brought
about a fresh pulsating life in law — a life which no one can
appreciate
unless he has studied law, inasmuch as we have nothing of the kind,
absolutely
nothing. * Moreover, in order to estimate the gulf between us and the
Romans,
we must remember that real scholarly and trained jurists did not come
into
existence till the end of the republic, and that this splendid, and in
most parts most delicately chiselled product of legal applied art is
the
work of peasants and rude warriors. The reader should try to make clear
to an average philistine of the present day the juristical difference
between
property and possession, to bring home to him that a thief is the legal
possessor of the stolen object, and as such enjoys legal protection for
his possession, as does also the pawnbroker and the hereditary
landlord;
he will not succeed, I know it from experience; I purposely choose this
as a simple example. The Roman peasant, on the other hand, who could
neither
read
*
Especially
of the year's edicts of the Praetors. Leist says that they had become
“the
principal moment in the finer development of Roman law“ (as quoted
above,
p. 622).
152 ROMAN
LAW
nor write, knew all this quite
accurately
five hundred years before Christ. * He certainly did not know much
more,
but his law he knew and employed with as exact knowledge as he did his
plough or his oxen; and by knowing it and thinking about it, † by
striving
to obtain for himself, his possessions, and his relatives an ever
firmer
and more definite legal protection, he built up that legal structure,
under
which at a later time other races found shelter in stormy days, and
which
we at the present day with more or less success, with more or less
changes,
seek to extend, finish and perfect. No people but the Romans could of
themselves
have created and built it up, for nowhere else was there present the
necessary
conjunction of qualities of character and of intellect, and this law
had
to be lived before it was thought, before the arrival of those worthies
who could tell us so much that was edifying in regard to a “natural
law,“
and thought it comparable to the geometry which the scholar puzzles out
in his lonely room.
In later times
Hellenes
and Semites have rendered great services as dogmatists and advocates,
Italians
as teachers of law, Frenchmen as systematisers, Germans as historians;
in none of the races mentioned, however, could one have found the soil
that could bring that tree to maturity. In the case of the Semites, for
instance, the moral subsoil was wanting, in the case of the Germans
acumen.
The Semites have great moral qualities, but not those from which a law
for civilised nations could have been developed. For the disregard of
the
legal claims and the freedom of others is a feature that ever reappears
in all races strongly imbued with Semitic blood. Already in ancient
Babylon
they had a finely worked out law of commerce and obligations; but even
in this limited
* See
the clear distinction between property and possession in Table VII.,
clause
11.
† In
Cicero's time every boy still learned the Twelve Tables by heart.
153 ROMAN
LAW
branch nothing was done to suppress
the frightful exaction of usury, and as for safeguarding personal
rights,
that of freedom, for instance, no one ever even thought of it. * But
even
under more favourable circumstances, for instance, among the Jews,
there
is not even the beginning of a genuine formation of law; strange as
that
may appear, a single glance at the legal clauses of the greatest Jewish
thinker, Spinoza, solves the riddle. In his Political Tractate
(ii.
4 and 8) we read, “The right of each one is in proportion to his
power.“
Here we might of course imagine that it was merely a question of
establishing
actual relations, for this second chapter bears the title “On Natural
Law.“
† However, in his Ethics (Part IV., Supplement, 8) we find in
black
and white: “According to the highest law of nature every man has
unlimited
power to do that which in his opinion will be in his interest“; and in
the treatise On True Freedom we find the words: “To obtain that
which we demand for our salvation and our peace, we need no other
principle
than this, to lay to heart what is for our own interests.“ ‡ That it
does
not disconcert so honest a man to build up a pure theory of morals upon
such foundations is the finest testimony to his inborn casuistical
gifts;
but it proves that Roman law could never have grown on Jewish soil. No,
there
*
Compare
the very minute information in Jhering's Vorgeschichte der
Indoeuropäer,
p. 233 ff. The usual rate of interest in Babylon was 20 to 25 per cent.
Jhering asserts that interest was a Babylonian, a Semitic (not a
Sumarian)
invention; he says, “all other peoples owe their acquaintance with it
to
the Babylonians.“ Honour to whom honour is due! Also the subtlest form
of interest, for instance, the favourite plan of lending money without
interest, by immediately taking it from the capital, was well known in
ancient Babylon, even before Homer had begun to write verses. When,
then,
shall we be spared the old fiction that it was only in recent centuries
that the Semites were forced by the persecution of Christians to become
usurers?
† How
astonished Cicero and Seneca, Scaevola and Papinian would have been at
such a conception of natural law!
‡ The
resemblance between the principles (not the conclusions) of Spinoza and
of Nietzsche is striking enough to claim our attention.
154 ROMAN
LAW
would have been at the most a simplified
code, such as King Tippu Tib, for instance, may use on the Congo. * It
was only on the foundation of a law invented and worked out in detail
by
Indo-Europeans that the Jew could display his astonishing juristical
abilities.
— The drawbacks in the case of the German lie in quite a different
direction.
Self-sacrifice, the impulse “to build from within outwards,“ the
emphasising
of the ethical moment, the unswerving love of freedom, in short, all
the
requisite moral qualities they would have possessed in abundance; — not
the intellectual ones. Acumen was never a national possession of the
Teutons;
that is so manifest that it requires no proof. Schopenhauer asserts
that
“the real national characteristic of the German is dullwittedness (Schwerfälligkeit).“
Moreover, the peculiar gifts of the Germans are a hindrance in the
formation
of law — his incomparable fancy (in contrast to the flat empiricism of
the Roman imagination), the creative passion of his mind (in contrast
to
the cool sobriety of the Roman), his scientific depth (in contrast to
the
practical political tendencies of the born legal race), his lively
sense
of fairness (in social relations always a weak reed in comparison with
the strictly legal attitude of the Roman). No, this people could never
have brought the applied art
*
A
few years ago I met in society an educated Jew, an owner of petroleum
wells
and a member of the notorious petroleum-ring. No argument could
convince
the honest man, who would not have harmed a fly, how morally
condemnable
such a ring was; his constant answer was, “I can, and therefore I may!“
Spinoza word for word, as one can see. — This brings up the grave
question
as to whether in Teutonic countries men of Jewish race should be
appointed
judges. Without any passion or prejudice, without doubting the
knowledge
and the spotless honour of those in question, one ought to ask oneself,
on the ground of historical and ethical data, whether it should be
taken
for granted that these men are capable of completely assimilating a
conception
of law which is so thoroughly in opposition to their natural
tendencies;
whether they really understand and feel this law which they use so
masterfully.
Whoever has come to recognise the clearly marked individuality of the
various
races of mankind can bring up such a question in all seriousness and
without
any ill-will.
155 ROMAN
LAW
of law to high perfection; it resembles
too closely the Indo-Aryans, whose “complete lack of the juristical
power
of distinguishing“ is demonstrated by Jhering in his Vorgeschichte
der
Indoeuropäer, § 15.
THE
FAMILY
I should like to
introduce
another national comparison with regard to the formation of law, that
between
the Hellenes and the Romans. It reveals the essence of Roman law, the
one
point to which I may call special attention in this book. At the same
time
it will make us feel how deeply our civilisation is indebted to the
Roman
legacy. My discussion will be brief, and though it deals with the
simple
beginnings of the remote past, it will also introduce us to the burning
questions of the immediate present.
Every educated person
knows that the Greeks were not only great politicians but at the same
time
great theorists in law. The “lawsuit about the shadow of the ass“ * is
an ancient Attic witticism, which satirises excellently the love of
this
thoughtless, litigious people for actions at law. I recall too the Wasps
of Aristophanes with the heartrending prayers of Philocleon when shut
in
by his son: “Let me out, let me out — to judge!“ But we should look
further
around. Homer has a court scene represented on the shield of Achilles (Iliad,
xviii. 497 ff.), Plato's largest works are on politics and the theory
of
law (the Republic and the Laws), Aristotle's Rhetoric
is in parts simply a handbook for advocates beginning their profession;
notice, for example, how in chap. xv. of the first book he expounds a
detailed
theory of deceptive sophistry for hedge-lawyers, gives them
*
An
Athenian hires an ass to carry his baggage to Megara. At a
resting-place
he sits down in the shadow of it; the driver will not permit this
without
extra payment, as he had hired the ass but not its shadow.
156 ROMAN
LAW
hints how to twist the law to the
advantage
of their clients, and advises them to let their clients swear false
oaths
in court, whenever it is to their advantage... *
We see that, except
in Sparta (where according to Plutarch's assurance there were
absolutely
no cases), the Hellenic atmosphere was charged with questions of law.
The
Romans, always ready to recognise the merits of others, had, from time
immemorial, recourse to the Greeks, particularly to the Athenians, for
advice in the development of their law. Even when they were about to
fix
their fundamental legal principles (in the Twelve Tables) for the first
time, they sent a commission to Greece, and in the final editing of
this
earliest monument, an Ephesian, Hermodorus, who was banished from his
native
city, is said to have been of considerable service. Time made no change
in this. The great authorities on law, a Mucius Scaevola, a Servius
Sulpicius,
have a thorough knowledge of Hellenic legal enactments; Cicero, and all
that this name stands for, derives his obscure remarks on divine
justice,
natural law, &c., from Greek philosophers: in the pseudo-Platonic Minos
he might have read that law is the discovery of an objective thing, not
a human invention, and from Aristotle he quotes the words, “The
universal
law, because it is the natural law, never changes, but the written law,
on the other hand, often does.“ † In the later period of the imperial
decay,
when the
*
This
belongs, according to the great philosopher, to “the means of
persuasion
that lie outside of art.“
† Up
to the present day one finds this passage quoted in juristical works,
but
with little justification, as Aristotle is here giving merely a
rhetorical
trick for use in court and on the next page teaches the use of the
opposite
assertion. Still less to the point is the passage from the Nicomachean
Ethics, v. 7, which culminates in the sentence, “Law is the mean
between
a certain advantage and a certain disadvantage.“ How great does
Democritus
show himself here as always when he says, with that clear insight
characteristic
of him, that “laws are the fruits of human thinking in contrast to the
things of nature“ (Diogenes Laertius, ix. 45).
157 ROMAN
LAW
Roman people had disappeared from the
face of the earth, the so-called “classical jurisprudence“ was founded
and put into shape almost entirely by Greeks more or less of Semitic
descent.
There is a remarkable want of information with regard to the
antecedents
and history of the most famous teachers of law in the later Roman ages;
all of a sudden they appear in office and dignity, no one knowing
whence
they have come. * But at the beginning of the Imperial rule with its
inevitable
influence upon the life of law the passionate struggle between Labeo,
the
irrepressible, free old plebeian, and Capito the upstart, who is
striving
for wealth and honour, is truly pathetic; it is the struggle for
organic
free development in opposition to the faith in authority and dogma. And
dogma conquered in the legal sphere as in that of religion. — But in
the
meantime, as we have said, the practical Romans had learned a great
deal
in Greece, especially from Solon, who had, as a builder of States,
achieved
little that lasted, but accomplished all the more in the sphere of law.
Whether Solon was the originator of written legislation and the
momentous
principle of actiones (the division of suits according to
definite
principles), or whether he merely systematised and fixed them — I know
not: at any rate both are derived from Athens. † This I mention only as
an instance of the great importance of Greece in the development of
Roman
law. Later, when all Hellenic countries were under Roman
administration,
the Greek cities contributed most to the formation of the jus
gentium
and in that way to the perfecting of Roman law. Here we may ask, how is
it that the Hellenes, so superior intellectually to the Romans, created
nothing
*
With
regard to the predominantly Semitic and Syrian race-connection of the
later
codifiers and embalmers of the Roman law, for whom we have shown too
much
admiration, see p. 91 ff. of the address of Leonhard quoted on
p.
125.
†
Leist,
Gräco-italische
Rechtsgeschichte, p. 585.
158 ROMAN
LAW
in the branch of knowledge that was
lasting or perfect, but shared in the great civilising work of the
formation
of law solely through the medium of the Romans?
A single but fatal
mistake was at the bottom of it: the Roman started from the family, on
which basis he erected State and law; the Greek, on the other hand,
took
as his starting-point the State, his ideal being always the
organisation
of the “polis,“ while family and law remained subordinate. All Greek
history
and literature prove the correctness of this assertion, and the fact
that
the greatest Hellene of post-Homeric times, Plato, considered the
complete
abolition of the family in the upper classes a desirable aim, shows to
what fatal confusions such a fundamental error must in time lead. With
perfect right Giordano Bruno says (I forget where), “The very smallest
mistake in the way in which a thing is attacked leads finally to the
very
greatest erroneous discrepancies; thus the most trifling mistake in the
ramification of thought can grow as an acorn does into an oak.“ * And
this
was not “the very smallest mistake“ but a very great one. Herein lies
all
the misery of the Hellenic peoples; here we have to seek the reason of
their inability to develop either State or Law in a lasting and ideal
manner.
If we take up a careful individual account, for example Aristotle's
book
The
Athenian Constitution, discovered a few years ago, this succession
of constitutions, all different and all breathing an essentially
different
spirit, makes us giddy: the pre-Draconian, those of Draco, Solon,
Cleisthenes,
Aristeides, Pericles, the Four Hundred, &c. &c., all within two
hundred and fifty years! Such a state of things would have been
impossible
where there existed a firmly knit family life. Without that it was easy
for the Greeks to arrive at that characteristically
*
The
above words are perhaps from one of the very free translations by
Kuhlenbeck.
In Bruno's De Immenso et Innumerabilibus I found the following
remark
(Bk. II. chap. i): “Parvus error in principio, magnus in fine est.“
159 ROMAN
LAW
unhistorical view of theirs, that law
was a subject for free speculation; and so they lost all feeling for
the
fact that in order to live, law must grow out of actual conditions. *
And
how striking it is that even the most important questions of family law
are regarded as subordinate, that Solon, for example, the most
prominent
Athenian as a lawyer, leaves the law of inheritance so obscure, that it
is left to the caprice of the law-courts to interpret it (Aristotle, as
above, division IX). — With Rome it was different. The strong tendency
to discipline here finds its first expression in the firm organisation
of the family. The sons remain under the control of the father, not
merely
till their fourteenth year, as in Greece, but till the death of the
father;
by the exclusion of relationship on the mother's side, by the legal
recognition
of the unlimited power of the pater-familias, even in regard to
the life and death of his children, (although his son might have risen
in the meantime to the highest offices in the State), by the greatest
freedom
and the most accurate individual enactments in reference to the law of
wills and legacies, by the strictest protection of all the father's
rights
of property and legal claims (for he alone possessed a right to
property
and was a persona sui juris, i.e., a person with full rights at
law) — by these things and many more the family became in Rome an
impregnably
firm, indissoluble unity, and it is essentially to this that we are
indebted
for the particular form of the Roman State and Roman law. One can
easily
imagine how such a strict conception of the family must affect the
whole
life, the morals of the men, the character of the children, the anxiety
to retain and to bequeath what had been acquired, the love of country,
which did not need to be artificially nourished, as in
*
J.
Jacques Rousseau makes an excellent remark in this connection: “Si
quelquefois
les lois influent sur les moeurs, c'est quand elles en tirent leur
force“
(Lettre à d'Alembert).
160 ROMAN
LAW
Greece: for the citizen fought for what
was assured to him for ever, he fought for his sacred home, for the
future
of his children, for peace and order.
MARRIAGE
The intimate
conception
of marriage and the position of women in society are naturally
connected
with all this. Here we have evidently the positive element in the
formation
of the Roman family, that which could not be fixed by law but which on
the contrary determined the forms of law. Among old Aryans marriage was
already regarded as a “divine institution,“ and when the young wife
crossed
the threshold of her new home she was received with the cry, “Come into
the house of thy husband, that thou mayest be called mistress; be
therein
as one who commands!“ * In this very point, Greeks and Romans,
otherwise
so manifoldly related, differed from one another. In Homer's time we
certainly
see the woman highly respected by the Greeks, and the comrade of the
man;
but the Ionians who emigrated to Asia Minor took strange wives, “who
did
not venture to call the Greek husband by his name, but addressed him as
master — this degeneration of the Asiatic Ionians has reacted on
Athens.“
† The Roman, on the other hand, regarded his wife as his companion and
equal, his life's mate, one who shared everything, divine as well as
human,
with him. The wife has, however, this position in Rome not because she
is wife, but because she is a woman, i.e., because of the
respect
which the Roman pays to the female sex as such. In all relations where
the natural difference of sex does not make a distinction necessary,
the
Roman puts woman on an equality with himself. There is no more
convincing
proof of this than the old Roman law of inheritance,
*
Zimmer,
Indisches
Leben, p. 313 ff.
†
Etfried
Müller, Dorier, 2nd ed, i. 78, ii. 282 (quoted from Leist).
161 ROMAN
LAW
which makes absolutely no difference
between the two sexes: the daughter receives exactly the same as the
son,
the kinswoman the same as the kinsman; if there are no children, the
widow
receives the whole inheritance and excludes the male line; the sister
does
the same when there is no widow. We must be acquainted with the
slighting
treatment to which the female sex is subjected in the laws of so many
other
nations to understand the significance of this point; in Greece, for
instance,
the nearer male relation excluded the wife altogether, and the lot of a
daughter was indeed lamentable, the nearest male relation having the
power
to take her from her husband. * The Roman wife was honoured in her
house
as princess, princeps familiae, and the Roman law speaks of the
matronarum
sanctitas, the sacredness of wives who are blessed with children.
Children
who in any way sinned against their parents fell under the ban of gods
and men; no penalty was enacted for the murder of a father, because, as
Plutarch tells us, this crime was considered unthinkable — in fact it
was
more than five hundred years before a case of parricide occurred. † To
form a right conception of this old Roman family, we must keep one
other
fact in view: that in Roman
*
Jhering:
Entwickelungsgeschichte
des römischen Rechtes, p. 55. Among the Teutons it was no
better.
“The right of inheritance is in the oldest German laws either
restricted
or denied to women altogether,“ says Grimm,
Deutsche Rechtsaltertümer,
3rd ed. p. 407. The concessions gradually granted are to be traced to
Roman
influence. Where this was little or not at all felt, the German legal
books,
even in the Middle Ages, still show the “complete inequality of women.“
In the extreme North, in Scandinavia and in oldest Frisia, a woman
could
inherit nothing at all, neither movable nor fixed property: “the man
enters
into inheritance, the woman leaves it.“ Not till the thirteenth century
did women receive a limited right of inheritance (Grimm, p. 473). These
are the conditions of law to which the Germanomaniacs longingly desire
to return!
† (Romulus,
xxix.) It may be mentioned by way of contrast that it was the custom
among
the Germans till the introduction of Christianity (among the Wends even
till the seventeenth century) to kill old weak parents! (See
Grimm:
Rechtsaltertümer,
pp. 486-90.)
162
ROMAN LAW
life the sacred element, that is, the
reverence for divine commands, played a great part. While the
paterfamilias
was, according to human law, an absolute despot in his house, the
divine
command forbade him to abuse this power. * The home was indeed a
sanctuary,
the hearth comparable to an altar; and while it is somewhat revolting
to
our feelings to-day to hear that parents in very great poverty
sometimes
sold their children as slaves, yet all histories of law give one the
firm
impression that any cruelty, according to ideas of that age, towards
wife
or children was almost or quite unknown. Indeed at law the wife is in
relation
to her husband filiae loco (equal to a daughter) in relation to
her own children
sororis loco (equal to a sister): but this is done
in the interests of the unity of the family, and in order that, in
constitutional
as well as in private law relations, the family may appear as a sharply
defined, autonomous, organic entity, represented at law by a single
person,
not as a more or less firm conglomerate of merely individual fragments.
We have already seen in the political part of this chapter that the
Roman
loved to transmit power to single individuals, confident that from
freedom
united to responsibility, both focussed, so to speak, in a personality
conscious of its individuality, moderate, and at the same time
energetic
and wise action would result. It is the same principle that prevails
here.
Later this family life degenerated; cunning means were invented to
bring
into usage substitutes for genuine marriage, in order that the wife
should
no longer come into the legal power of the husband; “marriage became a
money matter like everything else; not in order to found families, but
to improve shattered fortunes by means of dowries, were marriages
contracted,
and existing ones
*
Besides
he was subject to the censorial power, as much for too great strictness
in the exercise of his paternal rights as for carelessness therein; see
Jhering: Geist des römischen Rechtes, § 32.
163 ROMAN
LAW
dissolved, in order to form new unions“;
* but in spite of this Publius Syrus could in Caesar's time still
express
the Roman conception of marriage by the line:
- Perenne animus conjugium, non
corpus
facit.
The soul, not the body, makes marriage
eternal.
WOMAN
This is the
central
point of Roman law; the contrast with Greece (and with Germany) gives
us
an idea of the importance of such an organic central point. Here too
the
Roman proves himself far from unideal, though he is absolutely without
sentiment and almost painfully devoid of phantasy. Indeed, his “idea“
is
so strong, that what he really in his heart desired never again
altogether
disappeared. We have already seen in the preceding section that ideas
are
immortal, and though the Roman State was destroyed, yet the idea of it
lived on through the centuries, a still powerful influence; at the end
of the nineteenth century four mighty monarchs of Europe still bear the
title of Caesar, and the idea of res publica is still moulding
the
greatest State of the new world. But Roman law does not live on merely
as a Justinian mummy or a technical secret, revealed only to members of
the craft; no, I believe that the life-giving germ from which that law
had fundamentally grown was never totally destroyed, but continues to
live
on among us as a most valuable possession, in spite of the darkness of
disgracefully wicked centuries and the disintegrating ferment that
followed
them. We still talk of the sacredness of the family; any one who, like
certain Socialists, denies it is struck from the list of politicians
capable
of forming a judgment, and even those who are not pious Catholics will
a hundred times rather become reconciled to the concep-
*
Esmarch:
Römische
Rechtsgeschichte, p. 317.
164 ROMAN
LAW
tion that marriage is a religious
sacrament
(as it indeed was in ancient Rome; the Pontificate in this as in so
much
else being directly based on old Roman Pontifical law and proving
itself
the last official representative of Heathendom), than admit that
marriage
is, as the learned Anarchist leader Elisée Reclus elegantly
says,
“merely legal prostitution.“ That we feel thus is a Roman legacy. The
high
position of woman too, which makes our civilisation rank far above the
Hellenic and the various degenerate Semitic and Asiatic types, is not,
as Schopenhauer and so many others have taught, a “Christian-Teutonic,“
but a Roman creation. As far as one can judge, the old Teutons cannot
have
treated their women particularly well; here Roman influence appears to
have first brought about a change; the oldest German lawbooks are, in
reference
to the legal position of the wife, full of phrases taken literally from
Roman law (see Grimm: Deutsche Rechtsaltertümer,
II.
chap. i., B. 7 and ff.). It was the work of the Romans to give woman a
firm, secure, legal position in Europe. The “fair sex“ was indeed first
glorified in song by Germans, Italians, French, English and Spaniards;
the Roman people had not thought of that. * But I ask, whether without
the keen penetration and sense of justice, above all without the
incomparable
State-building instinct of the Romans, we should ever have advanced so
far as to take woman into our political system as our life's comrade
and
the cornerstone of the family? I think I may answer a decided no.
Christianity
in no wise signifies a strengthening of the idea of the family. On the
contrary, its real essence is to destroy all political and legal bonds
and make every single individual rely upon himself. And it was from
*
I
speak of the true, chaste woman; for the adulteress and the courtesan
were
loudly celebrated by the most popular of degenerate Rome's poets,
Catullus
and Virgil especially.
165 ROMAN
LAW
the Christian Emperor Constantine, who
annulled the sovereignty of the paterfamilias, that the Roman
family
in fact received its death-blow. Christianity, moreover, being derived
from Judaism, is from the first an anarchic, anti-political power. That
the Catholic Church followed a different road and became a political
power
of the greatest magnitude, is to be attributed simply to the fact that
it denied the clear teaching of Christ and adopted instead the Roman
State-idea
— though it was only the idea of the degenerate Roman State. The Church
did more than any other power for the maintenance of Roman law; * Pope
Gregory IX., for instance, aspired solely to the title of a “Justinian
of the Church“; this recognition of his juristical services lay nearer
his heart than sanctification. † Though the motives that impelled the
Church
and the Kings to retain and forcibly introduce Roman law in its
degenerate
Byzantine form were not particularly noble ones, yet that could not
prevent
many very noble Roman thoughts from being saved at the same time. And
just
as the tradition of Roman law never died, so, too, the Roman conception
of the dignity of woman and of the political importance of the family
never
quite disappeared from the consciousness of men. For several centuries
(here as in so many things the thirteenth century is with Petrus
Lombardus
the almost exact border-line) we have come nearer and nearer to the old
Roman conception, particularly since the Council of Trent and Martin
Luther
simultaneously emphasised the sacredness of marriage. That this
approach
is in many respects a purely ideal one does not matter; a perfectly new
civilisation cannot too thoroughly free itself from old forms; as it
is,
we pour far too much new wine into old bottles; but I do not think
* See
particularly Savigny: Geschichte des römischen Rechtes im
Mittelalter,
chaps. iii. xv. xxii., &c.
†
Bryce:
The
Holy Roman Empire, p. 131 of the French edition.
166 ROMAN
LAW
that any unprejudiced man will deny
that the Roman family is one of the most glorious achievements of the
human
mind, one of those heights which cannot be scaled twice, and to which
the
most distant generations will look up in admiration, making sure at the
same time that they themselves are not straying too far from the right
path. In every study of the nineteenth century, e.g., when
discussing
the burning question of the emancipation of women or when forming an
opinion
with regard to those socialistic theories which, in contrast to Rome,
culminate
in the formula, “No family, all State,“ the contemplation of this lofty
height will be of invaluable service.
POETRY
AND LANGUAGE
I have attempted a
somewhat difficult task — that of speaking untechnically on a technical
subject. I have had to confine myself to proving the peculiar fitness
of
the Romans for bringing to perfection this practical art; what I have
tried
to emphasise as their most far-reaching achievement for human society —
the strong legal establishment of the family — is, as will have been
noticed,
similar in essence to the original impelling force from which the
technical
mastery had gradually grown up. All that lies between, that is, the
whole
real practical art, had to be neglected, and equally all discussion of
the advantages and disadvantages of the preponderating influence of
Roman
law in the nineteenth century in its purely technical connection. And
without
needing to tread upon such dangerous quicksands, there are plenty of
suggestive
considerations for us laymen.
I have intentionally
confined myself to politics and law. What did not come down to us as a
legacy does not fall within the scope of this book, and many things
that
have been preserved to us, as, for example, the works of
167 ROMAN
LAW
Latin poets, claim the attention of
the scholar and the dilettante, but do not form a living part of our
life.
To put Greek and Latin poetry together and call them “classical
literature“
is a proof of incredible barbarism in taste and of a regrettable
ignorance
of the essence and value of the art of genius. Whenever Roman poetry
attempts
the sublime, as in Virgil and Ovid, it clings with a correct sense of
its
own hopeless unoriginality as slavishly as possible to Hellenic models.
As Treitschke says, “Roman literature is Greek literature written in
Latin.“
* What are our unhappy boys to think when in the forenoon the Iliad
of the greatest poetical genius of all times is expounded to them and
in
the afternoon that servile epic the Aeneid, written by imperial
command — both as classical models? The genuine and the false, the
glorious,
free creation arising out of the greatest creative necessity and the
finely
formed technique in the service of gold and dilettantism, genius and
talent,
presented as two flowers from the same stem, differing but little! As
long
as that pale abstraction, the idea of “classical literature,“ lives on
among us as dogma, so long will the night of the chaos of races
overshadow
us, so long will our schools be sterilising institutions destroying
every
creative impulse. Hellenic poetry was a beginning — a dawn — it created
a people, it lavished upon them all that the highest beauty can impart
to make life sacred, all that poetry can do to elevate hapless,
tortured
human souls and to fill them with a feeling of invisible friendly
powers
— and this fount of life wells on and never again dries up: one century
after the other is refreshed by it, one people after another draws from
its waters the power of inspiration to create beauty themselves; for
genius
is like God: it indeed reveals itself at a definite time and under
*
With
regard to the great Lucretius as an exception, see the note on p.
35.
168 ROMAN
LAW
distinct conditions, but in its essence
it is free from conditions; what becomes a fetter to others is the
material
out of which it makes for itself pinions, it rises out of time and
time's
death-shadow, and passes in all the glow of life into eternity. In
Rome,
on the other hand, one may boldly assert, genius was altogether
forbidden.
Rome has no poetry till it begins to decline. It is not till the night
sets in, when the Roman people is no longer there to hear, that the
singers
of Rome raise their voices; they are night flutterers; they write for
the
boudoirs of lascivious ladies, for the amusement of men of the world
and
for the court. Although Hellenes were close neighbours and from the
earliest
times scattered the seeds of Hellenic art, philosophy and science (for
all culture in Rome was from the first of Greek origin), not a single
grain
took root. Five hundred years before the birth of Christ the Romans
sent
to Athens, to glean accurate information regarding Greek law; their
ambassadors
met Aeschylus in the fulness of his powers and Sophocles already active
as a creative artist; what an artistic splendour must have sprung up in
the all-vigorous Rome after such contact, if even the slightest talent
had been there! But it did not. As Mommsen says, “The development of
the
arts of the Muse in Latium was rather a drying up than a growing up.“
The
Latins until their decline had no word for poet, the idea was strange
to
them! — If now their poets were without exception devoid of genius,
wherein
lay the importance of those among them who, like Horace and Juvenal,
have
always excited the admiration of the linguistic artists? Manifestly, as
with everything that comes from Rome, their importance lay in their
art.
The Romans were great builders — of sewers and aqueducts; * magnificent
painters — of room-decorations; great
*
And
yet not inventors even here; see Hueppe's investigations into
the
waterworks of the ancient Greek, Rassenhygiene der Griechen, p
37.
169 ROMAN
LAW
manufacturers — of objects belonging
to the industrial arts; in their circuses, masters of the art of
fighting
fought for money and professional charioteers drove on the racecourse.
The Roman could be a virtuoso, not an artist; all virtuosity interested
him, but no art. The poems of Horace are technical masterpieces. Apart
from their historically picturesque interest as descriptions of a life
that has vanished, the virtuosity alone in these poems attracts us. The
“wisdom of life,“ some one suggests by way of reproach? Yes, if such a
matter-of-fact and prosaic wisdom were not better anywhere else than in
the fairy realm of art, the wide-open, childlike eyes of which proclaim
from every Hellenic work of poetry quite a different wisdom from that
which
occurs to Horace and his friends between cheese and dessert. One of the
most truly poetical natures that ever lived, Byron, says of Horace:
- It is a curse
- To understand, not feel thy lyric
flow,
- To comprehend, but never love thy
verse.
What kind of art is that which speaks to
the intelligence, never to the heart? It can only be an artificial
work,
an applied art; if it came from the heart it would go to the heart. In
truth we still stand in this matter under French tutelage as the French
stand under Syrian-Jewish (Boileau — pseudo-Longinus); and though
little
of this inheritance has come into modern life, we should cast it off
once
for all in favour of our own poets in words and music, divinely
inspired
men, whose works tower high as the heavens above all that shot up in
unhealthy
haste like etiolated plants without root and without sap on the ruins
of
fallen Rome. *
*
Of
the very considerable literature which in the last years has been
written
on this question, and with which I have but little acquaintance, I
recommend
especially the small work of Prof. Albert Heintze, Latein und
Deutsch,
1902, which is written with as much knowledge as it is to the point and
devoid of passion.
170 ROMAN
LAW
In the hands of the
specialist, i.e., of the philologist, Latin poetry will be as
surely
and suitably preserved as the corpus juris in those of the
investigators
of law. If, however, the Latin tongue is to be retained at all costs as
the universal trainer of the mind (instead of teaching Greek alone but
more thoroughly), then let it be seen at work where it accomplishes
wonders,
where it, in accordance with the particular tendency of the Roman
people
and with its historical development, does what no other language ever
did
or will be able to do — in the plastic moulding of legal notions.
People
say that the Latin language educates the logical sense; I will believe
it, although I cannot help remarking that it was this very language in
which during the scholastic centuries, in spite of all logic, more
nonsense
was written than in any other at any time; but whereby has the Latin
language
acquired a character of such conciseness and definiteness? By the fact
that it was built up solely as the language of business, administration
and law. This the most unpoetical of all languages is a magnificent
monument
of the momentous struggle of free men to obtain a sure code of law. Let
our boys see it at work here. The great law-teachers of Rome have eo
ipso written the finest Latin; that, and not verse-writing, was the
business of the language; the faultlessly transparent formation of
sentences,
which shut out every possibility of misconstruction, was an important
instrument
of juristical applied art. From the study of law alone Cicero has taken
his qualities of style. Mommsen says even of the oldest documents of
the
language of business and law that they were distinguished by “acumen
and
definiteness,“ * and philologists are of opinion that in the language
of
Papinian, one of the last great teachers of law (in the time of Marcus
Aurelius), we have “the culmination of the capacity always to find the
* Römische
Geschichte, i. 471.
171 ROMAN
LAW
expression which fully answers to the
depth and clearness of the thought“; his sentences, they say, stand as
though chiselled out of marble: “not a word too much, not one too few,
every word in the absolutely right place, thus rendering, as far as
this
is feasible with language, every ambiguity impossible.“ * Intercourse
with
such men would indeed be a valuable addition to our education. And it
seems
to me that when every Roman boy knew the Twelve Tables by heart, it
would
be appropriate and intellectually beneficial to our youths to leave
school
not merely as stupid, learned subjecti, but with some accurate
conceptions
of private and constitutional law, thinking not merely according to
formal
logic, but also reasonably and practically, and steeled against all
empty
raving about “German law“ and such-like. In the meantime, because of
the
position we take up in reference to the Latin language, this legacy is
badly administered and consequently of but little profit.
SUMMARY
We men of the
nineteenth
century should not be what we are if a rich legacy from these two
cultures,
the Hellenic and the Roman, had not come down to us. And so we cannot
in
the least judge what we truly are, and confess with modesty how little
that is, if we do not form a quite clear conception of the nature of
these
inheritances. I hope that my endeavours in this direction will not have
been quite fruitless and I hope also that the reader will especially
have
noticed that the legacy of Rome is utterly and fundamentally different
from that of Greece.
In Hellas the
personality
of genius had been the decisive factor: whether on this side or on that
of the Adriatic and the Aegean Seas, the Greeks were great so long as
they
*
Esmarch:
Römische
Rechtsgeschichte, p. 400.
172 ROMAN
LAW
possessed great men. In Rome, on the
other hand, there were only great individualities in so far and so long
as the people was great, and it was great as long as it physically and
morally remained genuinely Roman. Rome is the extreme example of a
great
corporate national power, which works unconsciously but all the more
surely.
For that reason, however, it is less attractive than Hellas, and hence
what Rome did for our civilisation is seldom justly estimated. And yet
Rome commands our admiration and gratitude; its gifts were moral, not
intellectual;
but by this very fact it was capable of achieving great things. Not the
death of a Leonidas could save Europe from the Asiatic peril, upholding
man's dignity with man's freedom, and handing it over to future ages to
cultivate in peace and consolidate; this could only be accomplished by
a long-lived State, unbending and inexorably consistent in its
politics.
But neither theory nor fanaticism nor speculation could create this
long-lived
State; it had to be rooted in the character of the citizen. This
character
was hard and self-seeking, but great by reason of its high sense of
duty,
by its capacity for making sacrifices and by its devotion to the
family.
The Roman, by erecting amidst the chaos of contemporary attempts at
State-building
a strong and solid State of his own, provided a model for all ages to
come.
By bringing his law to a technical perfection previously unknown, he
laid
the foundations of jurisprudence for all mankind. By following his
natural
inclination and making the family the centre of State and law, by, in
fact,
almost assigning extravagant importance to this conception, he raised
woman
to equality with man and transformed the union of the sexes into the
sacredness
of marriage. While our artistic and scientific culture is in many
essential
points derived from Greece, our social culture leads us back to Rome. I
am not speaking
173 ROMAN
LAW
here of material civilisation, which
is derived from many countries and epochs and especially from the
inventive
industry of recent centuries, but of the secure moral foundations of a
dignified social life; the laying of these was a great work of culture.
End of page. Last
update: June 12th, 2004.
