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

Of all the Hellenic settlements in Italy, Tarentum was destined to play the most brilliant part. The excellent harbour, the only good one on the whole southern coast, rendered the city the natural emporium for the traffic of the south of Italy, and for some portion even of the commerce of the Adriatic. The rich fisheries of its gulf, the production and manufacture of its excellent wool, and the dyeing of it with the purple juice of the Tarentine -murex-, which rivalled that of Tyre—both branches of industry introduced there from Miletus in Asia Minor—employed thousands of hands, and added to the carrying trade a traffic of export. The coins struck at Tarentum in greater quantity than anywhere else in Grecian Italy, and struck pretty numerously even in gold, furnish to us a significant attestation of the lively and widely extended commerce of the Tarentines. At this epoch, when Tarentum was still contending with Sybaris for the first place among the Greek cities of Lower Italy, its extensive commercial connections must have been already forming; but the Tarentines seem never to have steadily and successfully directed their efforts to a substantial extension of their territory after the manner of the Achaean cities.

Greek Cities Near Vesuvius

While the most easterly of the Greek settlements in Italy thus rapidly rose into splendour, those which lay furthest to the north, in the neighbourhood of Vesuvius, attained a more moderate prosperity. There the Cumaeans had crossed from the fertile island of Aenaria (Ischia) to the mainland, and had built a second home on a hill close by the sea, from whence they founded the seaport of Dicaearchia (afterwards Puteoli) and, moreover, the "new city" Neapolis. They lived, like the Chalcidian cities generally in Italy and Sicily, in conformity with the laws which Charondas of Catana (about 100) had established, under a constitution democratic but modified by a high census, which placed the power in the hands of a council of members selected from the wealthiest men—a constitution which proved lasting and kept these cities free, upon the whole, from the tyranny alike of usurpers and of the mob. We know little as to the external relations of these Campanian Greeks. They remained, whether from necessity or from choice, confined to a district of even narrower limits than the Tarentines; and issuing from it not for purposes of conquest and oppression, but for the holding of peaceful commercial intercourse with the natives, they created the means of a prosperous existence for themselves, and at the same time took the foremost place among the missionaries of Greek civilization in Italy.

Relations of the Adriatic Regions to the Greeks

While on the one side of the straits of Rhegium the whole southern coast of the mainland and its western coast as far as Vesuvius, and on the other the larger eastern half of the island of Sicily, were Greek territory, the west coast of Italy northward of Vesuvius and the whole of the east coast were in a position essentially different. No Greek settlements arose on the Italian seaboard of the Adriatic; and with this we may evidently connect the comparatively small number and subordinate importance of the Greek colonies planted on the opposite Illyrian shore and on the numerous adjacent islands. Two considerable mercantile towns, Epidamnus or Dyrrachium (now Durazzo, 127), and Apollonia (near Avlona, about 167), were founded upon the portion of this coast nearest to Greece during the regal period of Rome; but no old Greek colony can be pointed out further to the north, with the exception perhaps of the insignificant settlement at Black Corcyra (Curzola, about 174?). No adequate explanation has yet been given why the Greek colonization developed itself in this direction to so meagre an extent. Nature herself appeared to direct the Hellenes thither, and in fact from the earliest times there existed a regular traffic to that region from Corinth and still more from the settlement at Corcyra (Corfu) founded not long after Rome (about 44); a traffic, which had as its emporia on the Italian coast the towns of Spina and Atria, situated at the mouth of the Po. The storms of the Adriatic, the inhospitable character at least of the Illyrian coasts, and the barbarism of the natives are manifestly not in themselves sufficient to explain this fact. But it was a circumstance fraught with the most momentous consequences for Italy, that the elements of civilization which came from the east did not exert their influence on its eastern provinces directly, but reached them only through the medium of those that lay to the west. The Adriatic commerce carried on by Corinth and Corcyra was shared by the most easterly mercantile city of Magna Graecia, the Doric Tarentum, which by the possession of Hydrus (Otranto) had the command, on the Italian side, of the entrance of the Adriatic. Since, with the exception of the ports at the mouth of the Po, there were in those times no emporia worthy of mention along the whole east coast—the rise of Ancona belongs to a far later period, and later still the rise of Brundisium—it may well be conceived that the mariners of Epidamnus and Apollonia frequently discharged their cargoes at Tarentum. The Tarentines had also much intercourse with Apulia by land; all the Greek civilization to be met with in the south-east of Italy owed its existence to them. That civilization, however, was during the present period only in its infancy; it was not until a later epoch that the Hellenism of Apulia was developed.

Relations of the Western Italians to the Greeks

It cannot be doubted, on the other hand, that the west coast of Italy northward of Vesuvius was frequented in very early times by the Hellenes, and that there were Hellenic factories on its promontories and islands. Probably the earliest evidence of such voyages is the localizing of the legend of Odysseus on the coasts of the Tyrrhene Sea.(4) When men discovered the isles of Aeolus in the Lipari islands, when they pointed out at the Lacinian cape the isle of Calypso, at the cape of Misenum that of the Sirens, at the cape of Circeii that of Circe, when they recognized in the steep promontory of Terracina the towering burial-mound of Elpenor, when the Laestrygones were provided with haunts near Caieta and Formiae, when the two sons of Ulysses and Circe, Agrius, that is the "wild," and Latinus, were made to rule over the Tyrrhenians in the "inmost recess of the holy islands," or, according to a more recent version, Latinus was called the son of Ulysses and Circe, and Auson the son of Ulysses and Calypso—we recognize in these legends ancient sailors' tales of the seafarers of Ionia, who thought of their native home as they traversed the Tyrrhene Sea. The same noble vividness of feeling, which pervades the Ionic poem of the voyages of Odysseus, is discernible in this fresh localization of the same legend at Cumae itself and throughout the regions frequented by the Cumaean mariners.

Other traces of these very ancient voyages are to be found in the Greek name of the island Aethalia (Ilva, Elba), which appears to have been (after Aenaria) one of the places earliest occupied by Greeks, perhaps also in that of the seaport Telamon in Etruria; and further in the two townships on the Caerite coast, Pyrgi (near S. Severa) and Alsium (near Palo), the Greek origin of which is indicated beyond possibility of mistake not only by their names, but also by the peculiar architecture of the walls of Pyrgi, which differs essentially in character from that of the walls of Caere and the Etruscan cities generally. Aethalia, the "fire-island," with its rich mines of copper and especially of iron, probably sustained the chief part in this commerce, and there in all likelihood the foreigners had their central settlement and seat of traffic with the natives; the more especially as they could not have found the means of smelting the ores on the small and not well-wooded island without intercourse with the mainland. The silver mines of Populonia also on the headland opposite to Elba were perhaps already known to the Greeks and wrought by them.

If, as was undoubtedly the case, the foreigners, ever in those times intent on piracy and plunder as well as trade, did not fail, when opportunity offered, to levy contributions on the natives and to carry them off as slaves, the natives on their part exercised the right of retaliation; and that the Latins and Tyrrhenes retaliated with greater energy and better fortune than their neighbours in the south of Italy, is attested not merely by the legends to that effect, but by the actual results. In these regions the Italians succeeded in resisting the foreigners and in retaining, or at any rate soon resuming, the mastery not merely of their own mercantile cities and mercantile ports, but also of their own sea. The same Hellenic invasion which crushed and denationalized the races of the south of Italy, directed the energies of the peoples of Central Italy—very much indeed against the will of their instructors—towards navigation and the founding of towns. It must have been in this quarter that the Italians first exchanged the raft and the boat for the oared galley of the Phoenicians and Greeks. Here too we first encounter great mercantile cities, particularly Caere in southern Etruria and Rome on the Tiber, which, if we may judge from their Italian names as well as from their being situated at some distance from the sea, were—like the exactly similar commercial towns at the mouth of the Po, Spina and Atria, and Ariminum further to the south—certainly not Greek, but Italian foundations. It is not in our power, as may easily be supposed, to exhibit the historical course of this earliest reaction of Italian nationality against foreign aggression; but we can still recognize the fact, which was of the greatest importance as bearing upon the further development of Italy, that this reaction took a different course in Latium and in southern Etruria from that which it exhibited in the properly Tuscan and adjoining provinces.

Hellenes and Latins

Legend itself contrasts in a significant manner the Latin with the "wild Tyrrhenian," and the peaceful beach at the mouth of the Tiber with the inhospitable shore of the Volsci. This cannot mean that Greek colonization was tolerated in some of the provinces of Central Italy, but not permitted in others. Northward of Vesuvius there existed no independent Greek community at all in historical times; if Pyrgi once was such, it must have already reverted, before the period at which our tradition begins, into the hands of the Italians or in other words of the Caerites. But in southern Etruria, in Latium, and likewise on the east coast, peaceful intercourse with the foreign merchants was protected and encouraged; and such was not the case elsewhere. The position of Caere was especially remarkable. "The Caerites," says Strabo, "were held in much repute among the Hellenes for their bravery and integrity, and because, powerful though they were, they abstained from robbery." It is not piracy that is thus referred to, for in this the merchant of Caere must have indulged like every other. But Caere was a sort of free port for Phoenicians as well as Greeks. We have already mentioned the Phoenician station—subsequently called Punicum—and the two Hellenic stations of Pyrgi and Alsium.(5) It was these ports that the Caerites refrained from robbing, and it was beyond doubt through this tolerant attitude that Caere, which possessed but a wretched roadstead and had no mines in its neighbourhood, early attained so great prosperity and acquired, in reference to the earliest Greek commerce, an importance even greater than the cities of the Italians destined by nature as emporia at the mouths of the Tiber and Po. The cities we have just named are those which appear as holding primitive religious intercourse with Greece. The first of all barbarians to present gifts to the Olympian Zeus was the Tuscan king Arimnus, perhaps a ruler of Ariminum. Spina and Caere had their special treasuries in the temple of the Delphic Apollo, like other communities that had regular dealings with the shrine; and the sanctuary at Delphi, as well as the Cumaean oracle, is interwoven with the earliest traditions of Caere and of Rome. These cities, where the Italians held peaceful sway and carried on friendly traffic with the foreign merchant, became preeminently wealthy and powerful, and were genuine marts not only for Hellenic merchandise, but also for the germs of Hellenic civilization.

Hellenes and Etruscans—Etruscan Maritime Power

Matters stood on a different footing with the "wild Tyrrhenians." The same causes, which in the province of Latium, and in the districts on the right bank of the Tiber and along the lower course of the Po that were perhaps rather subject to Etruscan supremacy than strictly Etruscan, had led to the emancipation of the natives from the maritime power of the foreigner, led in Etruria proper to the development of piracy and maritime ascendency, in consequence possibly of the difference of national character disposing the people to violence and pillage, or it may be for other reasons with which we are not acquainted. The Etruscans were not content with dislodging the Greeks from Aethalia and Populonia; even the individual trader was apparently not tolerated by them, and soon Etruscan privateers roamed over the sea far and wide, and rendered the name of the Tyrrhenians a terror to the Greeks. It was not without reason that the Greeks reckoned the grapnel as an Etruscan invention, and called the western sea of Italy the sea of the Tuscans. The rapidity with which these wild corsairs multiplied and the violence of their proceedings in the Tyrrhene Sea in particular, are very clearly shown by their establishment on the Latin and Campanian coasts. The Latins indeed maintained their ground in Latium proper, and the Greeks at Vesuvius; but between them and by their side the Etruscans held sway in Antium and in Surrentum. The Volscians became clients of the Etruscans; their forests contributed the keels for the Etruscan galleys; and seeing that the piracy of the Antiates was only terminated by the Roman occupation, it is easy to understand why the coast of the southern Volscians bore among Greek mariners the name of the Laestrygones. The high promontory of Sorrento with the cliff of Capri which is still more precipitous but destitute of any harbour—a station thoroughly adapted for corsairs on the watch, commanding a prospect of the Tyrrhene Sea between the bays of Naples and Salerno—was early occupied by the Etruscans. They are affirmed even to have founded a "league of twelve towns" of their own in Campania, and communities speaking Etruscan still existed in its inland districts in times quite historical. These settlements were probably indirect results of the maritime dominion of the Etruscans in the Campanian sea, and of their rivalry with the Cumaeans at Vesuvius.

Etruscan Commerce

The Etruscans however by no means confined themselves to robbery and pillage. The peaceful intercourse which they held with Greek towns is attested by the gold and silver coins which, at least from the year 200, were struck by the Etruscan cities, and in particular by Populonia, after a Greek model and a Greek standard. The circumstance, moreover, that these coins are modelled not upon those of Magna Graecia, but rather upon those of Attica and even Asia Minor, is perhaps an indication of the hostile attitude in which the Etruscans stood towards the Italian Greeks. For commerce they in fact enjoyed the most favourable position, far more advantageous than that of the inhabitants of Latium. Inhabiting the country from sea to sea, they commanded the great Italian free ports on the western waters, the mouths of the Po and the Venice of that time on the eastern sea, and the land route which from ancient times led from Pisa on the Tyrrhene Sea to Spina on the Adriatic, while in the south of Italy they commanded the rich plains of Capua and Nola. They were the holders of the most important Italian articles of export, the iron of Aethalia, the copper of Volaterrae and Campania, the silver of Populonia, and even the amber which was brought to them from the Baltic.(6) Under the protection of their piracy, which constituted as it were a rude navigation act, their own commerce could not fail to flourish. It need not surprise us to find Etruscan and Milesian merchants competing in the market of Sybaris, nor need we be astonished to learn that the combination of privateering and commerce on a great scale generated the unbounded and senseless luxury, in which the vigour of Etruria early wasted away.

Rivalry between the Phoenicians and Hellenes

While in Italy the Etruscans and, although in a lesser degree, the Latins thus stood opposed to the Hellenes, warding them off and partly treating them as enemies, this antagonism to some extent necessarily affected the rivalry which then above all dominated the commerce and navigation of the Mediterranean—the rivalry between the Phoenicians and Hellenes. This is not the place to set forth in detail how, during the regal period of Rome, these two great nations contended for supremacy on all the shores of the Mediterranean, in Greece even and Asia Minor, in Crete and Cyprus, on the African, Spanish, and Celtic coasts. This struggle did not take place directly on Italian soil, but its effects were deeply and permanently felt in Italy. The fresh energies and more universal endowments of the younger competitor had at first the advantage everywhere. Not only did the Hellenes rid themselves of the Phoenician factories in their own European and Asiatic homes, but they dislodged the Phoenicians also from Crete and Cyprus, gained a footing in Egypt and Cyrene, and possessed themselves of Lower Italy and the larger eastern half of the island of Sicily. On all hands the small trading stations of the Phoenicians gave way before the more energetic colonization of the Greeks. Selinus (126) and Agrigentum (174) were founded in western Sicily; the more remote western sea was traversed, Massilia was built on the Celtic coast (about 150), and the shores of Spain were explored, by the bold Phocaeans from Asia Minor. But about the middle of the second century the progress of Hellenic colonization was suddenly arrested; and there is no doubt that the cause of this arrest was the contemporary rapid rise of Carthage, the most powerful of the Phoenician cities in Libya—a rise manifestly due to the danger with which Hellenic aggression threatened the whole Phoenician race. If the nation which had opened up maritime commerce on the Mediterranean had been already dislodged by its younger rival from the sole command of the western half, from the possession of both lines of communication between the eastern and western basins of the Mediterranean, and from the monopoly of the carrying trade between east and west, the sovereignty at least of the seas to the west of Sardinia and Sicily might still be saved for the Orientals; and to its maintenance Carthage applied all the tenacious and circumspect energy peculiar to the Aramaean race. Phoenician colonization and Phoenician resistance assumed an entirely different character. The earlier Phoenician settlements, such as those in Sicily described by Thucydides, were mercantile factories: Carthage subdued extensive territories with numerous subjects and powerful fortresses. Hitherto the Phoenician settlements had stood isolated in opposition to the Greeks; now the powerful Libyan city centralized within its sphere the whole warlike resources of those akin to it in race with a vigour to which the history of the Greeks can produce nothing parallel.

Phoenicians and Italians in Opposition to the Hellenes

Perhaps the element in this reaction which exercised the most momentous influence in the sequel was the close relation into which the weaker Phoenicians entered with the natives of Sicily and Italy in order to resist the Hellenes. When the Cnidians and Rhodians made an attempt about 175 to establish themselves at Lilybaeum, the centre of the Phoenician settlements in Sicily, they were expelled by the natives—the Elymi of Segeste—in concert with the Phoenicians. When the Phocaeans settled about 217 at Alalia (Aleria) in Corsica opposite to Caere, there appeared for the purpose of expelling them a combined fleet of Etruscans and Carthaginians, numbering a hundred and twenty sail; and although in the naval battle that ensued—one of the earliest known in history-the fleet of the Phocaeans, which was only half as strong, claimed the victory, the Carthaginians and Etruscans gained the object which they had in view in the attack; the Phocaeans abandoned Corsica, and preferred to settle at Hyde (Velia) on the less exposed coast of Lucania. A treaty between Etruria and Carthage not only established regulations regarding the import of goods and the giving due effect to rights, but included also an alliance-in-arms (—summachia—), the serious import of which is shown by that very battle of Alalia. It is a significant indication of the position of the Caerites, that they stoned the Phocaean captives in the market at Caere and then sent an embassy to the Delphic Apollo to atone for the crime.

Latium did not join in these hostilities against the Hellenes; on the contrary, we find friendly relations subsisting in very ancient times between the Romans and the Phocaeans in Velia as well as in Massilia, and the Ardeates are even said to have founded in concert with the Zacynthians a colony in Spain, the later Saguntum. Much less, however, did the Latins range themselves on the side of the Hellenes: the neutrality of their position in this respect is attested by the close relations maintained between Caere and Rome, as well as by the traces of ancient intercourse between the Latins and the Carthaginians. It was through the medium of the Hellenes that the Cannanite race became known to the Romans, for, as we have already seen,(7) they always designated it by its Greek name; but the fact that they did not borrow from the Greeks either the name for the city of Carthage(8) or the national name of the -Afri-,(9) and the circumstance that among the earlier Romans Tyrian wares were designated by the adjective -Sarranus-,(10) which in like manner precludes the idea of Greek intervention, demonstrate—what the treaties of a later period concur in proving—the direct commercial intercourse anciently subsisting between Latium and Carthage.

The combined power of the Italians and Phoenicians actually succeeded in substantially retaining the western half of the Mediterranean in their hands. The northwestern portion of Sicily, with the important ports of Soluntum and Panormus on the north coast, and Motya at the point which looks towards Africa, remained in the direct or indirect possession of the Carthaginians. About the age of Cyrus and Croesus, just when the wise Bias was endeavouring to induce the Ionians to emigrate in a body from Asia Minor and settle in Sardinia (about 200), the Carthaginian general Malchus anticipated them, and subdued a considerable portion of that important island by force of arms; half a century later, the whole coast of Sardinia appears in the undisputed possession of the Carthaginian community. Corsica on the other hand, with the towns of Alalia and Nicaea, fell to the Etruscans, and the natives paid to these tribute of the products of their poor island, pitch, wax, and honey. In the Adriatic sea, moreover, the allied Etruscans and Carthaginians ruled, as in the waters to the west of Sicily and Sardinia. The Greeks, indeed, did not give up the struggle. Those Rhodians and Cnidians, who had been driven out of Lilybaeum, established themselves on the islands between Sicily and Italy and founded there the town of Lipara (175). Massilia flourished in spite of its isolation, and soon monopolized the trade of the region from Nice to the Pyrenees. At the Pyrenees themselves Rhoda (now Rosas) was established as an offset from Lipara, and it is affirmed that Zacynthians settled in Saguntum, and even that Greek dynasts ruled at Tingis (Tangiers) in Mauretania. But the Hellenes no longer gained ground; after the foundation of Agrigentum they did not succeed in acquiring any important additions of territory on the Adriatic or on the western sea, and they remained excluded from the Spanish waters as well as from the Atlantic Ocean. Every year the Liparaeans had their conflicts with the Tuscan "sea-robbers," and the Carthaginians with the Massiliots, the Cyrenaeans, and above all with the Sicilian Greeks; but no results of permanent moment were on either side achieved, and the issue of struggles which lasted for centuries was, on the whole, the simple maintenance of the -status quo-.

Thus Italy was—if but indirectly—indebted to the Phoenicians for the exemption of at least her central and northern provinces from colonization, and for the counter-development of a national maritime power there, especially in Etruria. But there are not wanting indications that the Phoenicians already found it worth while to manifest that jealousy which is usually associated with naval domination, if not in reference to their Latin allies, at any rate in reference to their Etruscan confederates, whose naval power was greater. The statement as to the Carthaginians having prohibited the sending forth of an Etruscan colony to the Canary islands, whether true or false, reveals the existence of a rivalry of interests in the matter.



Notes for Book I Chapter X

1. Whether the name of Graeci was originally associated with the interior of Epirus and the region of Dodona, or pertained rather to the Aetolians who perhaps earlier reached the western sea, may be left an open question; it must at a remote period have belonged to a prominent stock or aggregate of stocks of Greece proper and have passed over from these to the nation as a whole. In the Eoai of Hesiod it appears as the older collective name for the nation, although it is manifest that it is intentionally thrust aside and subordinated to that of Hellenes. The latter does not occur in Homer, but, in addition to Hesiod, it is found in Archilochus about the year 50, and it may very well have come into use considerably earlier (Duncker, Gesch. d. Alt. iii. 18, 556). Already before this period, therefore, the Italians were so widely acquainted with the Greeks that that name, which early fell into abeyance in Hellas, was retained by them as a collective name for the Greek nation, even when the latter itself adopted other modes of self-designation. It was withal only natural that foreigners should have attained to an earlier and clearer consciousness of the fact that the Hellenic stocks belonged to one race than the latter themselves, and that hence the collective designation should have become more definitely fixed among the former than with the latter—not the less, that it was not taken directly from the well-known Hellenes who dwelt the nearest to them. It is difficult to see how we can reconcile with this fact the statement that a century before the foundation of Rome Italy was still quite unknown to the Greeks of Asia Minor. We shall speak of the alphabet below; its history yields entirely similar results. It may perhaps be characterized as a rash step to reject the statement of Herodotus respecting the age of Homer on the strength of such considerations; but is there no rashness in following implicitly the guidance of tradition in questions of this kind?

2. Thus the three old Oriental forms of the —"id:i" (—"id:S"), —"id:l" (—"id:/") and —"id:r" (—"id:P"), for which as apt to be confounded with the forms of the —"id:s", —"id:g", and —"id:p" the signs —"id:I") —"id:L" —"id:R") were early proposed to be substituted, remained either in exclusive or in very preponderant use among the Achaean colonies, while the other Greeks of Italy and Sicily without distinction of race used exclusively or at any rate chiefly the more recent forms.

3. E. g. the inscription on an earthen vase of Cumae runs thus:——Tataies emi lequthos Fos d' an me klephsei thuphlos estai—.

4. Among Greek writers this Tyrrhene legend of Odysseus makes its earliest appearance in the Theogony of Hesiod, in one of its more recent sections, and thereafter in authors of the period shortly before Alexander, Ephorus (from whom the so-called Scymnus drew his materials), and the writer known as Scylax. The first of these sources belongs to an age when Italy was still regarded by the Greeks as a group of islands, and is certainly therefore very old; so that the origin of these legends may, on the whole, be confidently placed in the regal period of Rome.

5. I. X. Phoenicians in Italy, I. X. Relations of the Western Italians to the Greeks

6. I. X. Relations of Italy with Other Lands

7. I. X. Phoenicians in Italy

8. The Phoenician name was Karthada; the Greek, Karchedon; the Roman, Cartago.

9. The name -Afri-, already current in the days of Ennius and Cato (comp. -Scipio Africanus-), is certainly not Greek, and is most probably cognate with that of the Hebrews.

10. The adjective -Sarranus- was from early times applied by the Romans to the Tyrian purple and the Tyrian flute; and -Sarranus-was in use also as a surname, at least from the time of the war with Hannibal. -Sarra-, which occurs in Ennius and Plautus as the name of the city, was perhaps formed from -Sarranus-, not directly from the native name -Sor-. The Greek form, -Tyrus-, -Tyrius-, seems not to occur in any Roman author anterior to Afranius (ap. Fest. p. 355 M.). Compare Movers, Phon. ii. x, 174.



CHAPTER XI

Law and Justice



Modern Character of Italian Culture

History, as such, cannot reproduce the life of a people in the infinite variety of its details; it must be content with exhibiting the development of that life as a whole. The doings and dealings, the thoughts and imaginings of the individual, however strongly they may reflect the characteristics of the national mind, form no part of history. Nevertheless it seems necessary to make some attempt to indicate—only in the most general outlines—the features of individual life in the case of those earlier ages which are, so far as history is concerned, all but lost in oblivion; for it is in this field of research alone that we acquire some idea of the breadth of the gulf which separates our modes of thinking and feeling from those of the civilized nations of antiquity. Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difficulty we recognize to have once been green. Instead of threading that dreary maze and attempting to classify those shreds of humanity, the Chones and Oenotrians, the Siculi and the Pelasgi, it will be more to the purpose to inquire how the real life of the people in ancient Italy expressed itself in their law, and their ideal life in religion; how they farmed and how they traded; and whence the several nations derived the art of writing and other elements of culture. Scanty as our knowledge in this respect is in reference to the Roman people and still more so in reference to the Sabellians and Etruscans, even the slight and very defective information which is attainable will enable the mind to associate with these names some more or less clear glimpse of the once living reality. The chief result of such a view (as we may here mention by way of anticipation) may be summed up in saying that fewer traces comparatively of the primitive state of things have been preserved in the case of the Italians, and of the Romans in particular, than in the case of any other Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity of women to hold property, the acquiring of wives by purchase, the primitive form of burial, blood-revenge, the clan-constitution conflicting with the authority of the community, a vivid natural symbolism —all these, and numerous phenomena of a kindred character, must be presumed to have lain at the foundation of civilization in Italy as well as elsewhere; but at the epoch when that civilization comes clearly into view they have already wholly disappeared, and only the comparison of kindred races informs us that such things once existed. In this respect Italian history begins at a far later stage of civilization than e.g. the Greek or the Germanic, and from the first it exhibits a comparatively modern character.

The laws of most of the Italian stocks are lost in oblivion. Some information regarding the law of the Latin land alone has survived in Roman tradition.

Jurisdiction

All jurisdiction was vested in the community or, in other words, in the king, who administered justice or "command" (-ius-) on the "days of utterance" (-dies fasti-) at the "judgment platform" (-tribunal-) in the place of public assembly, sitting on the "chariot-seat" (-sella curulis-);(1) by his side stood his "messengers" (-lictores-), and before him the person accused or the "parties" (-rei-). No doubt in the case of slaves the decision lay primarily with the master, and in the case of women with the father, husband, or nearest male relative;(2) but slaves and women were not primarily reckoned as members of the community. Over sons and grandsons who were -in potestate- the power of the -pater familias- subsisted concurrently with the royal jurisdiction; that power, however, was not a jurisdiction in the proper sense of the term, but simply a consequence of the father's inherent right of property in his children. We find no traces of any jurisdiction appertaining to the clans as such, or of any judicature at all that did not derive its authority from the king. As regards the right of self-redress and in particular the avenging of blood, we still find perhaps in legends an echo of the original principle that a murderer, or any one who should illegally protect a murderer, might justifiably be slain by the kinsmen of the person murdered; but these very legends characterize this principle as objectionable,(3) and from their statements blood-revenge would appear to have been very early suppressed in Rome through the energetic assertion of the authority of the community. In like manner we perceive in the earliest Roman law no trace of that influence which under the oldest Germanic institutions the comrades of the accused and the people present were entitled to exercise over the pronouncing of judgment; nor do we find in the former any evidence of the usage so frequent in the latter, by which the mere will and power to maintain a claim with arms in hand were treated as judicially necessary or at any rate admissible.

Crimes

Judicial procedure took the form of a public or a private process, according as the king interposed of his own motion or only when appealed to by the injured party. The former course was taken only in cases which involved a breach of the public peace. First of all, therefore, it was applicable in the case of public treason or communion with the public enemy (-proditio-), and in that of violent rebellion against the magistracy (-perduellio-). But the public peace was also broken by the foul murderer (-parricida-), the sodomite, the violator of a maiden's or matron's chastity, the incendiary, the false witness, by those, moreover, who with evil spells conjured away the harvest, or who without due title cut the corn by night in the field entrusted to the protection of the gods and of the people; all of these were therefore dealt with as though they had been guilty of high treason. The king opened and conducted the process, and pronounced sentence after conferring with the senators whom he had called in to advise with him. He was at liberty, however, after he had initiated the process, to commit the further handling and the adjudication of the matter to deputies who were, as a rule, taken from the senate. The later extraordinary deputies, the two men for adjudicating on rebellion (-duoviri perduellionis-) and the later standing deputies the "trackers of murder" (-quaestores parricidii-) whose primary duty was to search out and arrest murderers, and who therefore exercised in some measure police functions, do not belong to the regal period, but may probably have sprung out of, or been suggested by, certain of its institutions. Imprisonment while the case was undergoing investigation was the rule; the accused might, however, be released on bail. Torture to compel confession was only applied to slaves. Every one convicted of having broken the public peace expiated his offence with his life. The modes of inflicting capital punishment were various: the false witness, for example, was hurled from the stronghold-rock; the harvest-thief was hanged; the incendiary was burnt. The king could not grant pardon, for that power was vested in the community alone; but the king might grant or refuse to the condemned permission to appeal for mercy (-provocatio-). In addition to this, the law recognized an intervention of the gods in favour of the condemned criminal. He who had made a genuflection before the priest of Jupiter might not be scourged on the same day; any one under fetters who set foot in his house had to be released from his bonds; and the life of a criminal was spared, if on his way to execution he accidentally met one of the sacred virgins of Vesta.

Punishment of Offenses against Order

The king inflicted at his discretion fines payable to the state for trespasses against order and for police offences; they consisted in a definite number (hence the name -multa-) of cattle or sheep. It was in his power also to pronounce sentence of scourging.

Law of Private Offenses

In all other cases, where the individual alone was injured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself before the king. When both parties had appeared and the plaintiff had orally stated his demand, while the defendant had in similar fashion refused to comply with it, the king might either investigate the cause himself or have it disposed of by a deputy acting in his name. The regular form of satisfaction for such an injury was a compromise arranged between the injurer and the injured; the state only interfered supplementarily, when the aggressor did not satisfy the party aggrieved by an adequate expiation (-poena-), when any one had his property detained or his just demand was not fulfilled.

Theft

Under what circumstances during this epoch theft was regarded as at all expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was by the judge assigned as a bondsman to the person from whom he had stolen.

Injuries

In cases of damage (-iniuria-) to person or to property, where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to accept compensation; if, on the other hand, any member was lost in consequence of it, the maimed person could demand eye for eye and tooth for tooth.

Property

Since the arable land among the Romans was long cultivated upon the system of joint possession and was not distributed until a comparatively late age, the idea of property was primarily associated not with immoveable estate, but with "estate in slaves and cattle" (-familia pecuniaque-). It was not the right of the stronger that was regarded as the foundation of a title to it; on the contrary, all property was considered as conferred by the community upon the individual burgess for his exclusive possession and use; and therefore it was only the burgess, and such as the community accounted in this respect as equal to burgesses, that were capable of holding property. All property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and immoveable estate (from the time that the latter was regarded as private property at all), and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless it was not in the power of the father arbitrarily to deprive his children of their right of inheritance, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In his lifetime no doubt the father might make dispositions disadvantageous to his children; for the law was sparing of personal restrictions on the proprietor and allowed, upon the whole, every grown-up man freely to dispose of his property. The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardianship like a lunatic, was probably as ancient as the period when the arable land was first divided and thereby private property generally acquired greater importance for the commonwealth. In this way the two antagonistic principles—the unlimited right of the owner to dispose of his own, and the preservation of the family property unbroken—were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little recognized mortgaging; but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were its purchaser, who thereupon gave his word of honour (-fiducia-) that he would not alienate the object pledged until the payment fell due, and would restore it to his debtor when the sum advanced had been repaid.

Contracts

Contracts concluded between the state and a burgess, particularly the obligation given by those who became sureties for a payment to the state (-praevides-, -praedes-), were valid without further formality. On the other hand, contracts between private persons under ordinary circumstances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor's word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (-mancipatio-), and of loan (-nexum-). A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (-mancipare-) and the buyer at the same time paid to the seller the stipulated price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.(4) These conditions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the obligation (-nexum-) of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum.(5) The repayment of the loan took place, when the time came, with similar forms.

Private Process

If a debtor to the state did not fulfil his obligations, he was without further ceremony sold with all that he had; the simple demand on the part of the state was sufficient to establish the debt. If on the other hand a private person informed the king of any violation of his property (-vindiciae-) or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (-sacramentum-) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution "by laying on of hands" (-manus iniectio-); the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend himself; a third person might indeed intercede for him and represent this act of violence as unwarranted (-vindex-), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave.(6) Thus the Roman community protected every man's estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.

Guardianship

Protection was in like manner provided for the estate of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.

Law of Inheritance

After a man's death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship—women included—shared alike, and the widow along with her children was admitted to her proportional share. A dispensation from the legal order of succession could only be granted by the assembly of the people; previous to which the consent of the priests had to be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the completely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.

Manumission

Manumission was unknown to the law of very early times. The owner might indeed refrain from exercising his proprietary rights; but this did not cancel the existing impossibility of master and slave coming under mutual obligations; still less did it enable the slave to acquire, in relation to the community, the rights of a guest or of a burgess. Accordingly manumission must have been at first simply -de facto-, not -de jure-; and the master cannot have been debarred from the possibility of again at pleasure treating the freedman as a slave. But there was a departure from this principle in cases where the master came under obligation not merely towards the slave, but towards the community, to leave him in possession of freedom. There was no special legal form, however, for thus binding the master—the best proof that there was at first no such thing as a manumission,—but those methods were employed for this object which the law otherwise presented, testament, action, or census. If the master had either declared his slave free when executing his last will in the assembly of the people, or had allowed his slave to claim freedom in his own presence before a judge or to get his name inscribed in the valuation-roll, the freedman was regarded not indeed as a burgess, but as personally free in relation to his former master and his heirs, and was accordingly looked upon at first as a client, and in later times as a plebeian.(7)

The emancipation of a son encountered greater difficulties than that of a slave; for while the relation of master to slave was accidental and therefore capable of being dissolved at will, the father could never cease to be father. Accordingly in later times the son was obliged, in order to get free from the father, first to enter into slavery and then to be set free out of this latter state; but in the period now before us no emancipation of sons can have as yet existed.

Clients and Foreigners

Such were the laws under which burgesses and clients lived in Rome. Between these two classes, so far as we can see, there subsisted from the beginning complete equality of private rights. The foreigner on the other hand, if he had not submitted to a Roman patron and thus lived as a client, was beyond the pale of the law both in person and in property. Whatever the Roman burgess took from him was as rightfully acquired as was the shellfish, belonging to nobody, which was picked up by the sea-shore; but in the case of ground lying beyond the Roman bounds, while the Roman burgess might take practical possession, he could not be regarded as in a legal sense its proprietor; for the individual burgess was not entitled to advance the bounds of the community. The case was different in war: whatever the soldier who was fighting in the ranks of the levy gained, whether moveable or immoveable property, fell not to him, but to the state, and accordingly here too it depended upon the state whether it would advance or contract its bounds.

Exceptions from these general rules were created by special state-treaties, which secured certain rights to the members of foreign communities within the Roman state. In particular, the perpetual league between Rome and Latium declared all contracts between Romans and Latins to be valid in law, and at the same time instituted in their case an accelerated civil process before sworn "recoverers" (-reciperatores-). As, contrary to Roman usage, which in other instances committed the decision to a single judge, these always sat in plural number and that number uneven, they are probably to be conceived as a court for the cognizance of commercial dealings, composed of arbiters from both nations and an umpire. They sat in judgment at the place where the contract was entered into, and were obliged to have the process terminated at latest in ten days. The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians; for the -mancipatio- and the -nexum- were originally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.

Dealings with countries strictly foreign were carried on in a different fashion and by means of other forms. In very early times treaties as to commerce and legal redress must have been entered into with the Caerites and other friendly peoples, and must have formed the basis of the international private law (-ius 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.

The national Roman theology sought on all hands to form distinct conceptions of important phenomena and qualities, to express them in its terminology, and to classify them systematically—in the first instance, according to that division of persons and things which also formed the basis of private law—that it might thus be able in due fashion to invoke the gods individually or by classes, and to point out (-indigitare-) to the multitude the modes of appropriate invocation. Of such notions, the products of outward abstraction—of the homeliest simplicity, sometimes venerable, sometimes ridiculous—Roman theology was in substance made up. Conceptions such as sowing (-saeturnus-) and field-labour (-ops-) ground (-tellus-) and boundary-stone (-terminus-), were among the oldest and most sacred of Roman divinities. Perhaps the most peculiar of all the forms of deity in Rome, and probably the only one for whose worship there was devised an effigy peculiarly Italian, was the double-headed lanus; and yet it was simply suggestive of the idea so characteristic of the scrupulous spirit of Roman religion, that at the commencement of every act the "spirit of opening" should first be invoked, while it above all betokened the deep conviction that it was as indispensable to combine the Roman gods in sets as it was necessary that the more personal gods of the Hellenes should stand singly and apart.(4) Of all the worships of Rome that which perhaps had the deepest hold was the worship of the tutelary spirits that presided in and over the household and the storechamber: these were in public worship Vesta and the Penates, in family worship the gods of forest and field, the Silvani, and above all the gods of the household in its strict sense, the Lases or Lares, to whom their share of the family meal was regularly assigned, and before whom it was, even in the time of Cato the Elder, the first duty of the father of the household on returning home to perform his devotions. In the ranking of the gods, however, these spirits of the house and of the field occupied the lowest rather than the highest place; it was—and it could not be otherwise with a religion which renounced all attempts to idealize—not the broadest and most general, but the simplest and most individual abstraction, in which the pious heart found most nourishment.

This indifference to ideal elements in the Roman religion was accompanied by a practical and utilitarian tendency, as is clearly enough apparent in the table of festivals which has been already explained. Increase of substance and of prosperity by husbandry and the rearing of flocks and herds, by seafaring and commerce—this was what the Roman desired from his gods; and it very well accords with this view, that the god of good faith (-deus fidius-), the goddess of chance and good luck (-fors fortuna-), and the god of traffic (-mercurius-), all originating out of their daily dealings, although not occurring in that ancient table of festivals, appear very early as adored far and near by the Romans. Strict frugality and mercantile speculation were rooted in the Roman character too deeply not to find their thorough reflection in its divine counterpart.

Spirits

Respecting the world of spirits little can be said. The departed souls of mortal men, the "good" (-manes-) continued to exist as shades haunting the spot where the body reposed (-dii inferi-), and received meat and drink from the survivors. But they dwelt in the depths beneath, and there was no bridge that led from the lower world either to men ruling on earth or upward to the gods above. The hero-worship of the Greeks was wholly foreign to the Romans, and the late origin and poor invention of the legend as to the foundation of Rome are shown by the thoroughly unRoman transformation of king Romulus into the god Quirinus. Numa, the oldest and most venerable name in Roman tradition, never received the honours of a god in Rome as Theseus did in Athens.

Priests

The most ancient priesthoods in the community bore reference to Mars; especially the priest of the god of the community, nominated for life, "the kindler of Mars" (-flamen Martialis-) as he was designated from presenting burnt-offerings, and the twelve "leapers" (-salii-), a band of young men who in March performed the war-dance in honour of Mars and accompanied it by song. We have already explained(5) how the amalgamation of the Hill-community with that of the Palatine gave rise to the duplication of the Roman Mars, and thereby to the introduction of a second priest of Mars—the -flamen Quirinalis- —and a second guild of dancers—the -salii collini-.

To these were added other public worships (some of which probably had an origin far earlier than that of Rome), for which either single priests were appointed—as those of Carmentis, of Volcanus, of the god of the harbour and the river—or the celebration of which was committed to particular colleges or clans in name of the people. Such a college was probably that of the twelve "field-brethren" (-fratres arvales-) who invoked the "creative goddess" (-dea dia-) in May to bless the growth of the seed; although it is very doubtful whether they already at this period enjoyed that peculiar consideration which we find subsequently accorded to them in the time of the empire. These were accompanied by the Titian brotherhood, which had to preserve and to attend to the distinctive -cultus- of the Roman Sabines,(6) and by the thirty "curial kindlers" (-flamines curiales-), instituted for the hearth of the thirty curies. The "wolf festival" (-lupercalia-) already mentioned was celebrated for the protection of the flocks and herds in honour of the "favourable god" (-faunus-) by the Quinctian clan and the Fabii who were associated with them after the admission of the Hill-Romans, in the month of February—a genuine shepherds' carnival, in which the "Wolves" (-luperci-) jumped about naked with a girdle of goatskin, and whipped with thongs those whom they met. In like manner the community may be conceived as represented and participating in the case of other gentile worships.

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