The History of Rome, Book I - Theodor Mommsen
Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26
The House-father and His Household
The family formed an unity. It consisted of the free man who upon
his father's death had become his own master, and the spouse whom
the priests by the ceremony of the sacred salted cake (-confarreatio-)
had solemnly wedded to share with him water and fire, with their son
and sons' sons and the lawful wives of these, and their unmarried
daughters and sons' daughters, along with all goods and substance
pertaining to any of its members. The children of daughters on
the other hand were excluded, because, if born in wedlock, they
belonged to the family of the husband; and if begotten out of
wedlock, they had no place in a family at all. To the Roman citizen
a house of his own and the blessing of children appeared the end
and essence of life. The death of the individual was not an evil,
for it was a matter of necessity; but the extinction of a household
or of a clan was injurious to the community itself, which in the
earliest times therefore opened up to the childless the means of
avoiding such a fatality by their adopting the children of others
as their own.
The Roman family from the first contained within it the conditions
of a higher culture in the moral adjustment of the mutual relations of
its members. Man alone could be head of a family. Woman did not
indeed occupy a position inferior to man in the acquiring of property
and money; on the contrary the daughter inherited an equal share
with her brother, and the mother an equal share with her children.
But woman always and necessarily belonged to the household, not
to the community; and in the household itself she necessarily held
a position of domestic subjection--the daughter to her father,
the wife to her husband,(1) the fatherless unmarried woman to her
nearest male relatives; it was by these, and not by the king, that
in case of need woman was called to account. Within the house,
however, woman was not servant but mistress. Exempted from the
tasks of corn-grinding and cooking which according to Roman ideas
belonged to the menials, the Roman housewife devoted herself in
the main to the superintendence of her maid-servants, and to the
accompanying labours of the distaff, which was to woman what the
plough was to man.(2) In like manner, the moral obligations of
parents towards their children were fully and deeply felt by the
Roman nation; and it was reckoned a heinous offence if a father
neglected or corrupted his child, or if he even squandered his
property to his child's disadvantage.
In a legal point of view, however, the family was absolutely guided
and governed by the single all-powerful will of the "father of
the household" (-pater familias-). In relation to him all in the
household were destitute of legal rights--the wife and the child
no less than the bullock or the slave. As the virgin became by the
free choice of her husband his wedded wife, so it rested with his
own free will to rear or not to rear the child which she bore to
him. This maxim was not suggested by indifference to the possession
of a family; on the contrary, the conviction that the founding of
a house and the begetting of children were a moral necessity and a
public duty had a deep and earnest hold of the Roman mind. Perhaps
the only instance of support accorded on the part of the community
in Rome is the enactment that aid should be given to the father who
had three children presented to him at a birth; while their ideas
regarding exposure are indicated by the prohibition of it so far
as concerned all the sons--deformed births excepted--and at least
the first daughter. Injurious, however, to the public weal as
exposure might appear, the prohibition of it soon changed its form
from that of legal punishment into that of religious curse; for
the father was, above all, thoroughly and absolutely master in his
household. The father of the household not only maintained the
strictest discipline over its members, but he had the right and duty
of exercising judicial authority over them and of punishing them as
he deemed fit in life and limb. The grown-up son might establish
a separate household or, as the Romans expressed it, maintain his
"own cattle" (-peculium-) assigned to him by his father; but in
law all that the son acquired, whether by his own labour or by gift
from a stranger, whether in his father's household or in his own,
remained the father's property. So long as the father lived, the
persons legally subject to him could never hold property of their
own, and therefore could not alienate unless by him so empowered,
or yet bequeath. In this respect wife and child stood quite on
the same level with the slave, who was not unfrequently allowed
to manage a household of his own, and who was likewise entitled to
alienate when commissioned by his master. Indeed a father might
convey his son as well as his slave in property to a third person:
if the purchaser was a foreigner, the son became his slave; if
he was a Roman, the son, while as a Roman he could not become a
Roman's slave, stood at least to his purchaser in a slave's stead
(-in mancipii causa-). The paternal and marital power was subject
to a legal restriction, besides the one already mentioned on the
right Of exposure, only in so far as some of the worst abuses were
visited by legal punishment as well as by religious curse. Thus
these penalties fell upon the man who sold his wife or married
son; and it was a matter of family usage that in the exercise of
domestic jurisdiction the father, and still more the husband, should
not pronounce sentence on child or wife without having previously
consulted the nearest blood-relatives, his wife's as well as his
own. But the latter arrangement involved no legal diminution of
power, for the blood-relatives called in to the domestic judgment
had not to judge, but simply to advise the father of the household
in judging.
But not only was the power of the master of the house substantially
unlimited and responsible to no one on earth; it was also, as long
as he lived, unchangeable and indestructible. According to the
Greek as well as Germanic laws the grown-up son, who was practically
independent of his father, was also independent legally; but the
power of the Roman father could not be dissolved during his life
either by age or by insanity, or even by his own free will, excepting
only that the person of the holder of the power might change, for
the child might certainly pass by way of adoption into the power
of another father, and the daughter might pass by a lawful marriage
out of the hand of her father into the hand of her husband and,
leaving her own -gens- and the protection of her own god to enter
into the -gens- of her husband and the protection of his god,
became thenceforth subject to him as she had hitherto been to her
father. According to Roman law it was made easier for the slave to
obtain release from his master than for the son to obtain release
from his father; the manumission of the former was permitted at an
early period, and by simple forms; the release of the latter was
only rendered possible at a much later date, and by very circuitous
means. Indeed, if a master sold his slave and a father his son
and the purchaser released both, the slave obtained his freedom,
but the son by the release simply reverted into his father's power
as before. Thus the inexorable consistency with which the Romans
carried out their conception of the paternal and marital power
converted it into a real right of property.
Closely, however, as the power of the master of the household over
wife and child approximated to his proprietary power over slaves
and cattle, the members of the family were nevertheless separated
by a broad line of distinction, not merely in fact but in law, from
the family property. The power of the house-master--even apart from
the fact that it appeared in operation only within the house--was
of a transient, and in some degree of a representative, character.
Wife and child did not exist merely for the house-father's sake in
the sense in which property exists only for the proprietor, or in
which the subjects of an absolute state exist only for the king;
they were the objects indeed of a legal right on his part, but they
had at the same time capacities of right of their own; they were
not things, but persons. Their rights were dormant in respect of
exercise, simply because the unity of the household demanded that
it should be governed by a single representative; but when the
master of the household died, his sons at once came forward as its
masters and now obtained on their own account over the women and
children and property the rights hitherto exercised over these by
the father. On the other hand the death of the master occasioned
no change in the legal position of the slave.
Family and Clan (-Gens-)
So strongly was the unity of the family realized, that even the
death of the master of the house did not entirely dissolve it.
The descendants, who were rendered by that occurrence independent,
regarded themselves as still in many respects an unity; a principle
which was made use of in arranging the succession of heirs and in
many other relations, but especially in regulating the position
of the widow and unmarried daughters. As according to the older
Roman view a woman was not capable of having power either over
others or over herself, the power over her, or, as it was in this
case more mildly expressed, the "guardianship" (-tutela-) remained
with the house to which she belonged, and was now exercised in the
room of the deceased house-master by the whole of the nearest male
members of the family; ordinarily, therefore, by sons over their
mother and by brothers over their sisters. In this sense the
family, once founded, endured unchanged till the male stock of its
founder died out; only the bond of connection must of course have
become practically more lax from generation to generation, until
at length it became impossible to prove the original unity. On
this, and on this alone, rested the distinction between family and
clan, or, according to the Roman expression, between -agnati- and
-gentiles-. Both denoted the male stock; but the family embraced
only those individuals who, mounting up from generation to generation,
were able to set forth the successive steps of their descent from
a common progenitor; the clan (-gens-) on the other hand comprehended
also those who were merely able to lay claim to such descent from
a common ancestor, but could no longer point out fully the intermediate
links so as to establish the degree of their relationship. This
is very clearly expressed in the Roman names: when they speak
of "Quintus, son of Quintus, grandson of Quintus and so on,
the Quintian," the family reaches as far as the ascendants are
designated individually, and where the family terminates the clan
is introduced supplementary, indicating derivation from the common
ancestor who has bequeathed to all his descendants the name of the
"children of Quintus."
Dependents of the Household
To these strictly closed unities--the family or household united
under the control of a living master, and the clan which originated
out of the breaking-up of such households--there further belonged
the dependents or "listeners" (-clientes-, from -cluere-). This
term denoted not the guests, that is, the members of other similar
circles who were temporarily sojourning in another household than
their own, and as little the slaves, who were looked upon in law
as the property of the household and not as members of it, but
those individuals who, while they were not free burgesses of any
commonwealth, yet lived within one in a condition of protected
freedom. These included refugees who had found a reception with a
foreign protector, and those slaves in respect of whom their master
had for the time being waived the exercise of his rights, and so
conferred on them practical freedom. This relation had not the
distinctive character of a strict relation -de jure-, like that of
a man to his guest: the client remained a man non-free, in whose
case good faith and use and wont alleviated the condition of
non-freedom. Hence the "listeners" of the household (-clientes-)
together with the slaves strictly so called formed the "body
of servants" (-familia-) dependent on the will of the "burgess"
(-patronus-, like -patricius-). Hence according to original right
the burgess was entitled partially or wholly to resume the property
of the client, to reduce him on emergency once more to the state
of slavery, to inflict even capital punishment on him; and it was
simply in virtue of a distinction -de facto-, that these patrimonial
rights were not asserted with the same rigour against the client
as against the actual slave, and that on the other hand the moral
obligation of the master to provide for his own people and to protect
them acquired a greater importance in the case of the client, who
was practically in a more free position, than in the case of the
slave. Especially must the -de facto- freedom of the client have
approximated to freedom -de jure- in those cases where the relation
had subsisted for several generations: when the releaser and the
released had themselves died, the -dominium- over the descendants
of the released person could not be without flagrant impiety claimed
by the heirs at law of the releaser; and thus there was gradually
formed within the household itself a class of persons in dependent
freedom, who were different alike from the slaves and from the
members of the -gens- entitled in the eye of the law to full and
equal rights.
The Roman Community
On this Roman household was based the Roman state, as respected
both its constituent elements and its form. The community of the
Roman people arose out of the junction (in whatever way brought
about) of such ancient clanships as the Romilii, Voltinii, Fabii,
etc.; the Roman domain comprehended the united lands of those
clans.(3) Whoever belonged to one of these clans was a burgess
of Rome. Every marriage concluded in the usual forms within this
circle was valid as a true Roman marriage, and conferred burgess-rights
on the children begotten of it. Whoever was begotten in an illegal
marriage, or out of marriage, was excluded from the membership of
the community. On this account the Roman burgesses assumed the name
of the "father's children" (-patricii-), inasmuch as they alone in
the eye of the law had a father. The clans with all the families
that they contained were incorporated with the state just as
they stood. The spheres of the household and the clan continued
to subsist within the state; but the position which a man held in
these did not affect his relations towards the state. The son was
subject to the father within the household, but in political duties
and rights he stood on a footing of equality. The position of the
protected dependents was naturally so far changed that the freedmen
and clients of every patron received on his account toleration in
the community at large; they continued indeed to be immediately
dependent on the protection of the family to which they belonged,
but the very nature of the case implied that the clients of members
of the community could not be wholly excluded from its worship and
its festivals, although, of course, they were not capable of the
proper rights or liable to the proper duties of burgesses. This
remark applies still more to the case of the protected dependents
of the community at large. The state thus consisted, like the
household, of persons properly belonging to it and of dependents--of
"burgesses" and of "inmates" or --metoeci--.
The King
As the clans resting upon a family basis were the constituent
elements of the state, so the form of the body-politic was modelled
after the family both generally and in detail. The household was
provided by nature herself with a head in the person of the father
with whom it originated, and with whom it perished. But in the
community of the people, which was designed to be imperishable,
there was no natural master; not at least in that of Rome, which
was composed of free and equal husbandmen and could not boast of a
nobility by the grace of God. Accordingly one from its own ranks
became its "leader" (-rex-) and lord in the household of the Roman
community; as indeed at a later period there were to be found in or
near to his dwelling the always blazing hearth and the well-barred
store-chamber of the community, the Roman Vestas and the Roman
Penates--indications of the visible unity of that supreme household
which included all Rome. The regal office began at once and by
right, when the position had become vacant and the successor had
been designated; but the community did not owe full obedience to
the king until he had convoked the assembly of freemen capable of
bearing arms and had formally challenged its allegiance. Then he
possessed in its entireness that power over the community which
belonged to the house-father in his household; and, like him, he
ruled for life. He held intercourse with the gods of the community,
whom he consulted and appeased (-auspicia publica-), and he nominated
all the priests and priestesses. The agreements which he concluded
in name of the community with foreigners were binding upon the whole
people; although in other instances no member of the community was
bound by an agreement with a non-member. His "command" (-imperium-)
was all-powerful in peace and in war, on which account "messengers"
(-lictores-, from -licere-, to summon) preceded him with axes and
rods on all occasions when he appeared officially. He alone had
the right of publicly addressing the burgesses, and it was he who
kept the keys of the public treasury. He had the same right as a
father had to exercise discipline and jurisdiction. He inflicted
penalties for breaches of order, and, in particular, flogging
for military offences. He sat in judgment in all private and in
all criminal processes, and decided absolutely regarding life and
death as well as regarding freedom; he might hand over one burgess
to fill the place of a slave to another; he might even order
a burgess to be sold into actual slavery or, in other words, into
banishment. When he had pronounced sentence of death, he was
entitled, but not obliged, to allow an appeal to the people for
pardon. He called out the people for service in war and commanded
the army; but with these high functions he was no less bound, when
an alarm of fire was raised, to appear in person at the scene of
the burning.
As the house-master was not simply the greatest but the only power
in the house, so the king was not merely the first but the only
holder of power in the state. He might indeed form colleges of
men of skill composed of those specially conversant with the rules
of sacred or of public law, and call upon them for their advice;
he might, to facilitate his exercise of power, entrust to others
particular functions, such as the making communications to the
burgesses, the command in war, the decision of processes of minor
importance, the inquisition of crimes; he might in particular, if
he was compelled to quit the bounds of the city, leave behind him
a "city-warden" (-praefectus urbi-) with the full powers of an
-alter ego-; but all official power existing by the side of the
king's was derived from the latter, and every official held his
office by the king's appointment and during the king's pleasure. All
the officials of the earliest period, the extraordinary city-warden
as well as the "leaders of division" (-tribuni-, from -tribus-,
part) of the infantry (-milites-) and of the cavalry (-celeres-)
were merely commissioned by the king, and not magistrates in the
subsequent sense of the term. The regal power had not and could
not have any external check imposed upon it by law: the master of
the community had no judge of his acts within the community, any
more than the housefather had a judge within his household. Death
alone terminated his power. The choice of the new king lay with the
council of elders, to which in case of a vacancy the interim-kingship
(-interregnum-) passed. A formal cooperation in the election
of king pertained to the burgesses only after his nomination; -de
jure- the kingly office was based on the permanent college of the
Fathers (-patres-), which by means of the interim holder of the
power installed the new king for life. Thus "the august blessing
of the gods, under which renowned Rome was founded," was transmitted
from its first regal recipient in constant succession to those that
followed him, and the unity of the state was preserved unchanged
notwithstanding the personal change of the holders of power.
This unity of the Roman people, represented in the field of
religion by the Roman Diovis, was in the field of law represented
by the prince, and therefore his costume was the same as that of
the supreme god; the chariot even in the city, where every one else
went on foot, the ivory sceptre with the eagle, the vermilion-painted
face, the chaplet of oaken leaves in gold, belonged alike to the
Roman god and to the Roman king. It would be a great error, however,
to regard the Roman constitution on that account as a theocracy:
among the Italians the ideas of god and king never faded away into
each other, as they did in Egypt and the East. The king was not
the god of the people; it were much more correct to designate him as
the proprietor of the state. Accordingly the Romans knew nothing
of special divine grace granted to a particular family, or of
any other sort of mystical charm by which a king should be made
of different stuff from other men: noble descent and relationship
with earlier rulers were recommendations, but were not necessary
conditions; the office might be lawfully filled by any Roman come
to years of discretion and sound in body and mind.(4) The king
was thus simply an ordinary burgess, whom merit or fortune, and
the primary necessity of having one as master in every house, had
placed as master over his equals--a husbandman set over husbandmen,
a warrior set over warriors. As the son absolutely obeyed his father
and yet did not esteem himself inferior, so the burgess submitted
to his ruler without precisely accounting him his better. This
constituted the moral and practical limitation of the regal power.
The king might, it is true, do much that was inconsistent with equity
without exactly breaking the law of the land: he might diminish his
fellow-combatants' share of the spoil; he might impose exorbitant
task-works or otherwise by his imposts unreasonably encroach upon
the property of the burgess; but if he did so, he forgot that his
plenary power came not from God, but under God's consent from the
people, whose representative he was; and who was there to protect
him, if the people should in return forget the oath of allegiance
which they had sworn? The legal limitation, again, of the king's
power lay in the principle that he was entitled only to execute the
law, not to alterit. Every deviation from the law had to receive
the previous approval of the assembly of the people and the council
of elders; if it was not so approved, it was a null and tyrannical
act carrying no legal effect. Thus the power of the king in Rome
was, both morally and legally, at bottom altogether different from
the sovereignty of the present day; and there is no counterpart at
all in modern life either to the Roman household or to the Roman
state.
The Community
The division of the body of burgesses was based on the "wardship,"
-curia- (probably related to -curare- = -coerare-, --koiranos--);
ten wardships formed the community; every wardship furnished a
hundred men to the infantry (hence -mil-es-, like -equ-es-, the
thousand-walker), ten horsemen and ten councillors. When communities
combined, each of course appeared as a part (-tribus-) of the
whole community (-tota-in Umbrian and Oscan), and the original unit
became multiplied by the number of such parts. This division had
reference primarily to the personal composition of the burgess-body,
but it was applied also to the domain so far as the latter was
apportioned at all. That the curies had their lands as well as the
tribes, admits of the less doubt, since among the few names of the
Roman curies that have been handed down to us we find along with
some apparently derived from -gentes-, e. g. -Faucia-, others
certainly of local origin, e. g. -Veliensis-; each one of them
embraced, in this primitive period of joint possession of land, a
number of clan-lands, of which we have already spoken.(5)
We find this constitution under its simplest form(6) in the scheme
of the Latin or burgess communities that subsequently sprang up
under the influence of Rome; these had uniformly the number of a
hundred councillors (-centumviri-). But the same normal numbers make
their appearance throughout in the earliest tradition regarding the
tripartite Rome, which assigns to it thirty curies, three hundred
horsemen, three hundred senators, three thousand foot-soldiers.