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The History of Rome (Volumes 1 5) - Theodor Mommsen

T >> Theodor Mommsen >> The History of Rome (Volumes 1 5)

Dealings with countries strictly foreign were carried on in a
different fashion and by means of other forms. In very early times
treaties as to commerce and legal redress must have been entered
into with the Caerites and other friendly peoples, and must have
formed the basis of the international private law (-ius gentium-),
which gradually became developed in Rome alongside of the law of
the land. An indication of the formation of such a law is found
in the remarkable -mutuum-, "the exchange" (from -mutare- like
-dividuus-)--a form of loan, which was not based like the -nexum-
upon a binding declaration of the debtor expressly emitted before
witnesses, but upon the mere transit of the money from one hand
to another, and which as evidently originated in dealings with
foreigners as the -nexum- in business dealings at home. It is
accordingly a significant fact that the word reappears in Sicilian
Greek as --moiton--; and with this is to be connected the reappearance
of the Latin -carcer- in the Sicilian --karkaron--. Since it is
philologically certain that both words were originally Latin, their
occurrence in the local dialect of Sicily becomes an important
testimony to the frequency of the dealings of Latin traders in
the island, which led to their borrowing money there and becoming
liable to that imprisonment for debt, which was everywhere in the
earlier systems of law the consequence of the non-repayment of a
loan. Conversely, the name of the Syracusan prison, "stone-quarries"
or --latomiai--, was transferred at an early period to the enlarged
Roman state-prison, the -lautumiae-.


Character of the Roman Law


We have derived our outline of these institutions mainly from
the earliest record of the Roman common law prepared about half a
century after the abolition of the monarchy; and their existence in
the regal period, while doubtful perhaps as to particular points of
detail, cannot be doubted in the main. Surveying them as a whole,
we recognize the law of a far-advanced agricultural and mercantile
city, marked alike by its liberality and its consistency. In
its case the conventional language of symbols, such as e. g. the
Germanic laws exhibit, has already quite disappeared. There is no
doubt that such a symbolic language must have existed at one time
among the Italians. Remarkable instances of it are to be found in
the form of searching a house, wherein the searcher must, according
to the Roman as well as the Germanic custom, appear without upper
garment merely in his shirt; and especially in the primitive
Latin formula for declaring war, in which we meet with two symbols
occurring at least also among the Celts and the Germans--the "pure
herb" (-herba pura-, Franconian -chrene chruda-) as a symbol of
the native soil, and the singed bloody staff as a sign of commencing
war. But with a few exceptions, in which reasons of religion
protected the ancient usages--to which class the -confarreatio-
as well as the declaration of war by the college of Fetiales
belonged--the Roman law, as we know it, uniformly and on principle
rejects the symbol, and requires in all cases neither more nor
less than the full and pure expression of will. The delivery of an
article, the summons to bear witness, the conclusion of marriage,
were complete as soon as the parties had in an intelligible manner
declared their purpose; it was usual, indeed, to deliver the article
into the hand of the new owner, to pull the person summoned as
a witness by the ear, to veil the bride's head and to lead her in
solemn procession to her husband's house; but all these primitive
practices were already, under the oldest national law of the
Romans, customs legally worthless. In a way entirely analogous to
the setting aside of allegory and along with it of personification
in religion, every sort of symbolism was on principle expelled from
their law. In like manner that earliest state of things presented
to us by the Hellenic as well as the Germanic institutions, wherein
the power of the community still contends with the authority of
the smaller associations of clans or cantons that are merged in
it, is in Roman law wholly superseded; there is no alliance for the
vindication of rights within the state, to supplement the state's
imperfect aid, by mutual offence and defence; nor is there any
serious trace of vengeance for bloodshed, or of the family property
restricting the individual's power of disposal. Such institutions
must probably at one time have existed among the Italians; traces
of them may perhaps be found in particular institutions of ritual,
e. g. in the expiatory goat, which the involuntary homicide was
obliged to give to the nearest of kin to the slain; but even at the
earliest period of Rome which we can conceive this stage had long
been transcended. The clan and the family doubtless were not
annihilated in the Roman community; but the theoretical as well
as the practical omnipotence of the state in its own sphere was no
more limited by them than by the freedom which the state granted
and guaranteed to the burgess. The ultimate foundation of law was
in all cases the state; freedom was simply another expression for
the right of citizenship in its widest sense; all property was
based on express or tacit transference by the community to the
individual; a contract was valid only so far as the community by
its representatives attested it, a testament only so far as the
community confirmed it. The provinces of public and private law were
definitely and clearly discriminated: the former having reference
to crimes against the state, which immediately called for the
judgment of the state and always involved capital punishment; the
latter having reference to offences against a fellow-burgess or a
guest, which were mainly disposed of in the way of compromise by
expiation or satisfaction made to the party injured, and were never
punished with the forfeit of life, but, at most, with the loss of
freedom. The greatest liberality in the permission of commerce and
the most rigorous procedure in execution went hand in hand; just
as in commercial states at the present day the universal right to
draw bills of exchange appears in conjunction with a strict procedure
in regard to them. The burgess and the client stood in their
dealings on a footing of entire equality; state-treaties conceded
a comprehensive equality of rights also to the guest; women were
placed completely on a level in point of legal capacity with men,
although restricted in action; the boy had scarcely grown up when
he received at once the most comprehensive powers in the disposal
of his estate, and every one who could dispose at all was as
sovereign in his own sphere as was the state in public affairs. A
feature eminently characteristic was the system of credit. There
did not exist any credit on landed security, but instead of a debt
on mortgage the step which constitutes at present the final stage
in mortgage-procedure --the delivery of the property from the debtor
to the creditor--took place at once. On the other hand personal
credit was guaranteed in the most summary, not to say extravagant
fashion; for the lawgiver entitled the creditor to treat his insolvent
debtor like a thief, and granted to him in entire legislative earnest
what Shylock, half in jest, stipulated for from his mortal enemy,
guarding indeed by special clauses the point as to the cutting off
too much more carefully than did the Jew. The law could not have
more clearly expressed its design, which was to establish at once
an independent agriculture free of debt and a mercantile credit,
and to suppress with stringent energy all merely nominal ownership
and all breaches of fidelity. If we further take into consideration
the right of settlement recognized at an early date as belonging
to all the Latins,(8) and the validity which was likewise early
pronounced to belong to civil marriage,(9) we shall perceive that
this state, which made the highest demands on its burgesses and
carried the idea of subordinating the individual to the interest of
the whole further than any state before or since has done, only did
and only could do so by itself removing the barriers to intercourse
and unshackling liberty quite as much as it subjected it to
restriction. In permission or in prohibition the law was always
absolute. As the foreigner who had none to intercede for him was
like the hunted deer, so the guest was on a footing of equality
with the burgess. A contract did not ordinarily furnish a ground
of action, but where the right of the creditor was acknowledged,
it was so all-powerful that there was no deliverance for the poor
debtor, and no humane or equitable consideration was shown towards
him. It seemed as if the law found a pleasure in presenting on all
sides its sharpest spikes, in drawing the most extreme consequences,
in forcibly obtruding on the bluntest understanding the tyrannic
nature of the idea of right. The poetical form and the genial
symbolism, which so pleasingly prevail in the Germanic legal
ordinances, were foreign to the Roman; in his law all was clear and
precise; no symbol was employed, no institution was superfluous.
It was not cruel; everything necessary was performed without much
ceremony, even the punishment of death; that a free man could not
be tortured was a primitive maxim of Roman law, to obtain which
other peoples have had to struggle for thousands of years. Yet this
law was frightful in its inexorable severity, which we cannot suppose
to have been very greatly mitigated by humanity in practice, for
it was really the law of the people; more terrible than Venetian
-piombi- and chambers of torture was that series of living entombments
which the poor man saw yawning before him in the debtors' towers
of the rich. But the greatness of Rome was involved in, and was
based upon, the fact that the Roman people ordained for itself and
endured a system of law, in which the eternal principles of freedom
and of subordination, of property and of legal redress, reigned
and still at the present day reign unadulterated and unmodified.




Notes for Book I Chapter XI


1. This "chariot-seat"--philologically no other explanation can
well be given (comp. Servius ad Aen. i. 16)--is most simply explained
by supposing that the king alone was entitled to ride in a chariot
within the city (v. The King)--whence originated the privilege
subsequently accorded to the chief magistrate on solemn occasions--and
that originally, so long as there was no elevated tribunal, he
gave judgment, at the comitium or wherever else he wished, from
the chariot-seat.

2. I. V. The Housefather and His Household

3. The story of the death of king Tatius, as given by Plutarch
(Rom. 23, 24), viz. that kinsmen of Tatius had killed envoys from
Laurentum; that Tatius had refused the complaint of the kinsmen
of the slain for redress; that they then put Tatius to death; that
Romulus acquitted the murderers of Tatius, on the ground that murder
had been expiated by murder; but that, in consequence of the penal
judgments of the gods that simultaneously fell upon Rome and
Laurentum, the perpetrators of both murders were in the sequel
subjected to righteous punishment--this story looks quite like a
historical version of the abolition of blood-revenge, just as the
introduction of the -provocatio- lies at the foundation of the myth
of the Horatii. The versions of the same story that occur elsewhere
certainly present considerable variations, but they seem to be
confused or dressed up.

4. The -mancipatio- in its developed form must have been more recent
than the Servian reform, as the selection of mancipable objects,
which had for its aim the fixing of agricultural property, shows,
and as even tradition must have assumed, for it makes Servius the
inventor of the balance. But in its origin the -mancipatio- must
be far more ancient; for it primarily applies only to objects which
are acquired by grasping with the hand, and must therefore in its
earliest form have belonged to the epoch when property consisted
essentially in slaves and cattle (-familia pecuniaque-). The enumeration
of those objects which had to be acquired by -mancipatio-, falls
accordingly to be ranked as a Servian innovation; the -mancipatio-
itself, and consequently the use also of the balance and of copper,
are older. Beyond doubt -mancipatio- was originally the universal
form of purchase, and occurred in the case of all articles even
after the Servian reform; it was only a misunderstanding of later
ages which put upon the rule, that certain articles had to be
transferred by -mancipatio-, the construction that these articles
only and no others could be so transferred.

5. Viz. for the year of ten months one twelfth part of the capital
(-uncia-), which amounts to 8 1/3 per cent for the year of ten,
and 10 per cent for the fear of twelve, months.

6. I. VII. Relation of Rome to Latium

7. I. VI. Dependents and Guests.

8. I. VII. Relation of Rome to Latium

9. I. VI. Class of --Metoeci-- Subsisting by the Side of the
Community




CHAPTER XII

Religion



Roman Religion


The Roman world of gods, as we have already indicated,(1) was a
higher counterpart, an ideal reflection, of the earthly Rome, in
which the little and the great were alike repeated with painstaking
exactness. The state and the clan, the individual phenomenon of
nature as well as the individual mental operation, every man, every
place and object, every act even falling within the sphere of Roman
law, reappeared in the Roman world of gods; and, as earthly things
come and go in perpetual flux, the circle of the gods underwent
a corresponding fluctuation. The tutelary spirit, which presided
over the individual act, lasted no longer than that act itself: the
tutelary spirit of the individual man lived and died with the man;
and eternal duration belonged to divinities of this sort only in
so far as similar acts and similarly constituted men and therefore
spirits of a similar kind were ever coming into existence afresh.
As the Roman gods ruled over the Roman community, so every foreign
community was presided over by its own gods; but sharp as was the
distinction between the burgess and non-burgess, between the Roman
and the foreign god, both foreign men and foreign divinities could
be admitted by resolution of the community to the freedom of Rome,
and when the citizens of a conquered city were transported to Rome,
the gods of that city were also invited to take up their new abode
there.


Oldest Table of Roman Festivals


We obtain information regarding the original cycle of the gods, as
it stood in Rome previous to any contact with the Greeks, from the
list of the public and duly named festival-days (-feriae publicae-)
of the Roman community, which is preserved in its calendar and is
beyond all question the oldest document which has reached us from
Roman antiquity. The first place in it is occupied by the gods
Jupiter and Mars along with the duplicate of the latter, Quirinus.
To Jupiter all the days of full moon (-idus-) are sacred, besides
all the wine-festivals and various other days to be mentioned
afterwards; the 21st May (-agonalia-) is dedicated to his counterpart,
the "bad Jovis" (-Ve-diovis-). To Mars belongs the new-year of the
1st March, and generally the great warrior-festival in this month
which derived its very name from the god; this festival, introduced
by the horse-racing (-equirria-) on the 27th February, had during
March its principal solemnities on the days of the shield-forging
(-equirria- or -Mamuralia-, March 14), of the armed dance at the
Comitium (-quinquatrus-, March 19), and of the consecration of
trumpets (-tubilustrium-, March 23). As, when a war was to be waged,
it began with this festival, so after the close of the campaign
in autumn there followed a further festival of Mars, that of
the consecration of arms (-armilustrium-, October 19). Lastly,
to the second Mars, Quirinus, the 17th February was appropriated
(-Quirinalia-). Among the other festivals those which related to
the culture of corn and wine hold the first place, while the pastoral
feasts play a subordinate part. To this class belongs especially
the great series of spring-festivals in April, in the course of
which sacrifices were offered on the 15th to Tellus, the nourishing
earth (-fordicidia-, sacrifice of the pregnant cow), on the 19th
to Ceres, the goddess of germination and growth (-Cerialia-) on the
21st to Pales, the fecundating goddess of the flocks (-Parilia-),
on the 23rd to Jupiter, as the protector of the vines and of the
vats of the previous year's vintage which were first opened on this
day (-Vinalia-), and on the 25th to the bad enemy of the crops, rust
(-Robigus-: -Robigalia-). So after the completion of the work of
the fields and the fortunate ingathering of their produce double
festivals were celebrated in honour of the god and goddess of
inbringing and harvest, Census (from -condere-) and Ops; the first,
immediately after the completion of cutting (August 21, -Consualia-;
August 25, -Opiconsiva-); and the second, in the middle of winter,
when the blessings of the granary are especially manifest (December
15, -Consualia-; December 19, -Opalia-); between these two latter
days the thoughtfulness of the old arrangers of the festivals inserted
that of seed-sowing (Saturnalia from -Saeturnus- or -Saturnus-,
December 17). In like manner the festival of must or of healing
(-meditrinalia-, October 11), so called because a healing virtue
was attributed to the fresh must, was dedicated to Jovis as the
wine-god after the completion of the vintage; the original reference
of the third wine-feast (-Vinalia-, August 19) is not clear. To
these festivals were added at the close of the year the wolf-festival
(-Lupercalia-, February 17) of the shepherds in honour of the
good god, Faunus, and the boundary-stone festival (-Terminalia-,
February 23) of the husbandmen, as also the summer grove-festival
of two days (-Lucaria-, July 19, 21) which may have had reference
to the forest-gods (-Silvani-), the fountain-festival (-Fontinalia-,
October 13), and the festival of the shortest day, which brings in
the new sun (-An-geronalia-, -Divalia-, December 21).

Of not less importance--as was to be expected in the case of the
port of Latium--were the mariner-festivals of the divinities of the
sea (-Neptunalia-, July 23), of the harbour (-Portunalia-, August
17), and of the Tiber stream (-Volturnalia-, August 27).

Handicraft and art, on the other hand, are represented in this cycle
of the gods only by the god of fire and of smith's work, Vulcanus,
to whom besides the day named after him (-Volcanalia-, August 23)
the second festival of the consecration of trumpets was dedicated
(-tubilustrium-, May 23), and eventually also by the festival of
Carmentis (-Carmentalia- January 11, 15), who probably was adored
originally as the goddess of spells and of song and only inferentially
as protectress of births.

Domestic and family life in general were represented by the festival
of the goddess of the house and of the spirits of the storechamber,
Vesta and the Penates (-Vestalia-, June 9); the festival of the
goddess of birth(2) (-Matralia-, June 11); the festival of the
blessing of children, dedicated to Liber and Libera (-Liberalia-,
March 17), the festival of departed spirits (-Feralia-, February
21), and the three days' ghost-celebration (-Lemuria- May 9,
11, 13); while those having reference to civil relations were the
two--otherwise to us somewhat obscure--festivals of the king's
flight (-Regifugium-, February 24) and of the people's flight
(-Poplifugia-, July 5), of which at least the last day was devoted
to Jupiter, and the festival of the Seven Mounts (-Agonia- or
-Septimontium-, December 11). A special day (-agonia-, January
9) was also consecrated to Janus, the god of beginning. The real
nature of some other days--that of Furrina (July 25), and that
of the Larentalia devoted to Jupiter and Acca Larentia, perhaps a
feast of the Lares (December 23)--is no longer known.

This table is complete for the immoveable public festivals;
and--although by the side of these standing festal days there
certainly occurred from the earliest times changeable and occasional
festivals--this document, in what it says as well as in what it
omits, opens up to us an insight into a primitive age otherwise
almost wholly lost to us. The union of the Old Roman community and
the Hill-Romans had indeed already taken place when this table of
festivals was formed, for we find in it Quirinus alongside of Mars;
but, when this festival-list was drawn up, the Capitoline temple
was not yet in existence, for Juno and Minerva are absent; nor was
the temple of Diana erected on the Aventine; nor was any notion of
worship borrowed from the Greeks.


Mars and Jupiter


The central object not only of Roman but of Italian worship generally
in that epoch when the Italian stock still dwelt by itself in the
peninsula was, according to all indications, the god Maurs or Mars,
the killing god,(3) preeminently regarded as the divine champion
of the burgesses, hurling the spear, protecting the flock,
and overthrowing the foe. Each community of course possessed its
own Mars, and deemed him to be the strongest and holiest of all;
and accordingly every "-ver sacrum-" setting out to found a new
community marched under the protection of its own Mars. To Mars
was dedicated the first month not only in the Roman calendar of
the months, which in no other instance takes notice of the gods,
but also probably in all the other Latin and Sabellian calendars:
among the Roman proper names, which in like manner contain no allusion
to any gods, Marcus, Mamercus, and Mamurius appear in prevailing
use from very early times; with Mars and his sacred woodpecker was
connected the oldest Italian prophecy; the wolf, the animal sacred
to Mars, was the badge of the Roman burgesses, and such sacred
national legends as the Roman imagination was able to produce
referred exclusively to the god Mars and to his duplicate Quirinus.
In the list of festivals certainly Father Diovis--a purer and
more civil than military reflection of the character of the Roman
community--occupies a larger space than Mars, just as the priest
of Jupiter has precedence over the two priests of the god of war;
but the latter still plays a very prominent part in the list, and
it is even quite likely that, when this arrangement of festivals
was established, Jovis stood by the side of Mars like Ahuramazda
by the side of Mithra, and that the worship of the warlike Roman
community still really centred at this time in the martial god of
death and his March festival, while it was not the "care-destroyer"
afterwards introduced by the Greeks, but Father Jovis himself, who
was regarded as the god of the heart-gladdening wine.


Nature of the Roman Gods


It is no part of our present task to consider the Roman deities in
detail; but it is important, even in an historical point of view,
to call attention to the peculiar character at once of shallowness
and of fervour that marked the Roman faith. Abstraction
and personification lay at the root of the Roman as well as of
the Hellenic mythology: the Hellenic as well as the Roman god was
originally suggested by some natural phenomenon or some mental
conception, and to the Roman just as to the Greek every divinity
appeared a person. This is evident from their apprehending the
individual gods as male or female; from their style of appeal to
an unknown deity,--"Be thou god or goddess, man or woman;" and from
the deeply cherished belief that the name of the proper tutelary
spirit of the community ought to remain for ever unpronounced, lest
an enemy should come to learn it and calling the god by his name
should entice him beyond the bounds. A remnant of this strongly
sensuous mode of apprehension clung to Mars in particular, the
oldest and most national form of divinity in Italy. But while
abstraction, which lies at the foundation of every religion, elsewhere
endeavoured to rise to wider and more enlarged conceptions and to
penetrate ever more deeply into the essence of things, the forms
of the Roman faith remained at, or sank to, a singularly low level
of conception and of insight. While in the case of the Greek
every influential motive speedily expanded into a group of forms
and gathered around it a circle of legends and ideas, in the case
of the Roman the fundamental thought remained stationary in its
original naked rigidity. The religion of Rome had nothing of its
own presenting even a remote resemblance to the religion of Apollo
investing earthly morality with a halo of glory, to the divine
intoxication of Dionysus, or to the Chthonian and mystical worships
with their profound and hidden meanings. It had indeed its "bad
god" (-Ve-diovis-), its apparitions and ghosts (-lemures-), and
afterwards its deities of foul air, of fever, of diseases, perhaps even
of theft (-laverna-); but it was unable to excite that mysterious
awe after which the human heart has always a longing, or thoroughly
to embody the incomprehensible and even the malignant elements
in nature and in man, which must not be wanting in religion if it
would reflect man as a whole. In the religion of Rome there was
hardly anything secret except possibly the names of the gods of
the city, the Penates; the real character, moreover, even of these
gods was manifest to every one.