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like a feudal aristocracy, but they were bound together by a common
distinction derived from a legal title, and by a common interest; and
their common interest was to endeavor to confine the election to all the
high magistracies to the members of their own body." The term
_nobilitas_ implied that some one of a man's ancestors had filled a
curule magistracy, and it also implied the possession of wealth.
Theoretically it would seem that the _nobiles_ were very numerous,
since so many people can ordinarily boast of an illustrious ancestor;
but practically the class was not so large as we might expect. A noble
might be poor, but still, like Sulla, he remained noble. The distinction
of patrician was, long before the reforms of the Gracchi, of secondary
importance; that of _nobilitas_ remained to the close of the
republic. The nobility kept themselves exclusive and powerful from the
possession of the great offices of state from generation to generation;
they prevented their own extinction by admitting into their ranks those
who distinguished themselves to an eminent degree.

[Sidenote: The reign of demagogues.]

But this state of things applied only to the republic in its palmy days.
When democratical influences favored the ascendency of demagogues, - thus
far in the history of our world, the inevitable consequence of a greater
extension of popular liberties than what the people are prepared for, -
then wholesome restraints were removed, and the people were the most
enslaved, when they thought themselves most free. There is no more
melancholy slavery than the slavery of the passions. Ignorant self-
indulgent people are led by their passions; they are rarely influenced
by reason or by enlightened self-interest. Those who most skillfully and
unscrupulously appeal to popular passions, when the people have power,
have necessarily the ascendency in the community. The people, deceived,
flattered, headstrong, follow them willingly. In times of war, and
especially among a martial people, military chieftains, by inflaming the
warlike passions, by holding out exaggerated notions of glory, by
appealing to vanity and patriotism mingled, have ever had a most
extraordinary influence in republics. They have also great influence in
monarchies, when the monarch is crazed by the passion of military
success. Monarchs, with the passions of the people, are led by men who
flatter them even as the people are led. Hence the reign of favorites
with kings. The ascendency of favorites, with sovereigns like Louis
XIII., or even like Louis XIV., is maintained by the same policy as that
which animated Marius and Caesar, or animates the popular favorites of
our times. And this ascendency may be for the better or the worse,
according to the character of the demagogue rulers, or royal favorites.
When a Richelieu or a Cavour holds the reins, a country may be
indirectly benefited by the wisdom of their public acts. When a
Buckingham or a Catiline prevails, a nation suffers a calamity. In
either case, the power which is conceded to be legitimate becomes a
mockery. With Caesar, the popular power is a mere name, even, as with
Richelieu, the kingly is a shadow. In the better days of the Roman
republic, the executive power was kept in a healthy state by the great
authority of the Senate, and the senatorial influence was prevented from
undue encroachment by the watchfulness of the tribunes. And when the
aristocratical ascendency was most marked, the aristocratical body had
too much virtue and ability to be enslaved by ambitious and able men of
their own number. Had the Roman Senate, in the height of its power, been
composed of ignorant, inexperienced, selfish, unpatriotic members, then
it would have been easy for a great intellect among them, whether
accompanied by virtue or not, by appealing perpetually to their pride,
to their rank, to their privileges, to their peculiar passions, to have
led them, as Pitt led the House of Commons. The real rulers of our world
are few, in any community, or under any form of government. They are
always dangerous, when there is a low degree of virtue or intelligence
among those whom they represent. Certain it is, that their power is
nearly absolute when they are sustained by passion or prejudice. The
representative of a fanatical constituency has no continued power,
unless he perpetually flatters those whom, in his heart, he knows to be
lost to the control of reason. And his influence is greater or less,
according to the strength of the popular passions which he inflames, or
in which, as is often the case, he shares. The honest representative of
fanatics is himself a fanatic. Thus Cromwell had so great an ascendency
with his party, because he felt more strongly than they in matters where
they sympathized. But the liberties of Rome were not overturned by
fanatical rulers, but by those who availed themselves of the passions
which they themselves did not feel, in order to compass their selfish
ends. And that is the greater danger in republics - that bad men rise by
the suffrage of foolish people whom they deceive, by affecting to fall
in with their wishes, like Napoleon and Caesar, rather than that honest
men climb to power by the very excess of their enthusiasm, like
Cromwell, or Peter the Hermit. Hence a Mirabeau is more dangerous than a
Robespierre. The former would have betrayed the people he led; the
latter would have urged them on to consistent courses, even if the way
was lined with death. Had Mirabeau lived, and retained his power, he
would have compromised the Revolution, of which Napoleon was the
product, and the work would have had to be done over. But Robespierre
pushed his principles to their utmost logical sequence, and the nation
was satisfied with their folly, in a practical point of view. Napoleon
arose to rebuke anarchy as well as feudal kings, and though maddened and
intoxicated by war, so that his name is a Moloch, he never dreamed of
restoring the unequal privileges which the Revolution swept away.

[Sidenote: Greatness of the constitution.]

The Roman constitution, as gradually developed by the necessities and
crises which arose, is a wonderful monument of human wisdom. The people
were not ground down. They had rights which they never relinquished; and
they constantly gained new privileges, as they were prepared to
appreciate them, or as they were in danger of subjection by the
governing classes. They never had the ascendency, but they enjoyed
renewed and increasing power, until they were strong enough to tempt
aristocratic demagogues and successful generals. When Caesar condescended
to flatter the people, they had become a power, but a power incapable of
holding its own, or using it for the welfare of the state. Then it was
subverted, as Napoleon rode into absolute dominion over the bridge which
the Revolution had built. And the Roman constitution was remarkable, not
only because it prevented a degrading subjection of the masses, even
while it refused them the rights of government, but because it
maintained a balance among the governing classes themselves, and
restricted the usurpations of powerful families, as well as military
heroes. For nearly five hundred years, not a man arose whom the Romans
feared, or whom they could not control - whom they could not at any time
have hurled from the Tarpeian rock had he contemplated the subversion, I
will not say of the liberties of the people, but of the constitution
which made the aristocracy supreme. There were ambitious and
unscrupulous men, doubtless, among those fortunate generals whom the
Senate snubbed, and whom the people adored. But, great as they were in
war, and powerful from family interest and vast wealth, no one of them
ever dared to make himself supreme until Caesar passed the Rubicon - not
Scipio, crowned with the laurels which he had taken from the head of
Hannibal; not Marius, fresh from his great victories over the barbaric
hosts of northern Europe; not even Sulla, after his magnificent
conquests in the east, and his triumph over all the parties and factions
which democracy raised against him. Pompey may have contemplated what it
was the fortune of Caesar to secure. But that pompous magnate could have
succeeded only by using the watchwords and practicing the acts to which
none but a demagogue could have stooped. Before his time, at least for
fifty years, there were too many men in the Senate who had the spirit of
Cato, of Cicero, and of Brutus.

[Sidenote: The Revolution.]

[Sidenote: Effects of imperial rule.]

But, _tempora mutantur_. When the Senate was made up of men whom
great generals selected, whether aristocratic sycophants or rich
plebeians; when the tribunes played into the hands of the very men whom
they were created to oppose; when the high priest of a people,
originally religious, was chosen without regard to either moral or
religious considerations, but purely political; when the high offices of
the state were filled by senators who had never seen military life
except for some brief campaign; when factions and parties set old
customs aside; when the most aristocratic nobles sought entrance into
plebeian ranks in order, like Mirabeau, to steal the few offices which
the people controlled, and when the people, mad and fierce from
demoralizing spectacles, raised mobs and subverted law, then the
constitution, under which the Romans had advanced to the conquest of the
world, became subverted. Under the emperors, there was no constitution.
They controlled the Senate, the army, the tribunals of the law, the
distant provinces, the city itself, and regulated taxes and imposed
burdens, and appointed to high offices whomever they wished. The Senate
lost its independence, the courts their justice, the army its spirit,
and the people their hopes. Yet the old form remained. The Senate met as
in the days of the Gracchi. There were consuls and praetors still. But it
was merely equites or rich men who filled the senatorial benches - tools
of the emperor, as were all the officers of the state. The government of
nobles was succeeded by the government of emperors who, in their turn,
were too often the tools of favorites, or of praetorian guards, until the
assassin's dagger cut short their days.

[Sidenote: The rule of emperors a necessity.]

This is not the place to speculate on the good or evil which resulted
from this change in the Roman government. Most historians and
philosophers agree that the change was inevitable, and proved, on the
whole, benignant. It was simply the question whether the Romans should
have civil wars and anarchies and factions, which decimated the people,
and kept society in a state of fear and insecurity, and prevented the
triumph of law, or whether they should submit to an absolute ruler, who
had unbounded means of doing good, and whom interest and duty alike
prompted to secure the public welfare. The people wanted, above all
things, safety, and the means of prosecuting their various interests.
Under the emperors they obtained the greatest boons possible, when the
condition of society was hollow and rotten to the core. The people were
governed, sometimes wisely, sometimes recklessly, but there were order
and law for three hundred years. It little mattered to the vast
population of the empire who was supreme master, provided they were not
oppressed. The proud _Imperator_, the title and praenomen of all the
Roman monarchs, and which had been invented for Octavian, remained the
fountain of law, the arbiter of all interests, the undisputed ruler of
the world. The old offices nominally remained, but, by virtue of the
censorship, the emperor had the power of excluding persons from the
Senate, and of calling others into it. Thus the august body which was,
under the republic, the counterpoise to executive authority, was
rendered dependent on the imperial will. There was no Senate, but in
name, when it could be controlled by the government. It became a mere
form, or an instrument in the hands of the administration, to facilitate
business. By obtaining the proconsular power over the whole of the Roman
Empire, Octavian made the provincial governors his vicegerents. The
_tribunicia potestas_ which he also enjoyed, enabled him to annul
any decree of the Senate, and of interfering in all the acts of the
magistrates. An appeal was open to him, as tribune, from all the courts
of justice; he had a right to convoke the Senate, and to put any subject
under consideration to the vote of senators. Augustus even seized the
pontificate, which office, that of Pontifex Maximus, put into his hands
all the ecclesiastical courts. As tribune and censor, he also controlled
the treasury, so that all the powers of the state were concentrated in
him alone - that of consul, tribune, censor, praetor, and high priest.
What a power to be exercised by one man in so great an empire! The Roman
constitution was subverted when one man usurped the offices which were
formerly shared by many. No sovereign was ever so absolute as the Roman
Imperator, since he combined all the judicial, the executive, and the
legislative branches of the government; that is, he controlled them all.

[Sidenote: The old forms of government preserved.]

Yet the old machinery was kept up, the old forms, the old offices in
name, otherwise even Augustus might not have been secure on his throne.
The Comitia still elected magistrates, but only such as were proposed by
the government. The Senate assembled as usual, but it was composed of
rich men, merely to register the decrees of the Imperator. The consuls
were elected as before, but they were mere shadows in authority. The
only respectable part of the magistracy was that which interpreted the
laws. The only final authority was the edict of the emperor, who not
only controlled all the great offices of state, but was possessed of
enormous and almost unlimited private property. They owned whole
principalities. Augustus changed the whole registration of property in
Gaul on his own responsibility, without consulting any one. [Footnote:
Niebuhr, Lecture 105.] His power was so unlimited that soldiers took the
oath of allegiance to him, as they once did to the _imperium populi
Romani_. His armies, his fleets, and his officers were everywhere,
and no one dreamed of resisting a power which absorbed everything into
itself.

[Sidenote: The imperial power unable to save the state.]

It is altogether another question whether the prosperity of the state
was greater or less after the subversion of the constitution. For three
hundred years the state was probably kept together by the ancient
mechanism controlled by one central will. The change from civil war and
party faction to imperial centralized power, considering the demoralized
condition of society, was doubtless beneficial. The emperor could rule;
he could not, however, conserve the empire. Doubtless, in most cases, he
ruled well, since he ruled by the of great experience and ability. It is
peculiarly the interest of despots to have able men as ministers. They
never select those whom they deem to be weak and corrupt; they are
simply deceived in their estimate of ability and fidelity. For several
generations, the provinces had experienced governors, the armies had
able generals, the courts of law learned judges. The provinces were not
so inexorably robbed as in the time of Cicero. The people had their
pleasures and spectacles and baths. Property was secure, unless enormous
fortunes tempted the cupidity of the emperors. Justice was well
administered. Cities were rebuilt and adorned. Rome owed its greatest
monuments of art to the emperors. There was a cold and remorseless
despotism; but the unnoticed millions toiled in peace. Literature did
not thrive, since that can only live with freedom, but art received
great encouragement, and genius, in the useful professions, did not go
unrewarded. The empire did not fall till luxury and prosperity enervated
the people and rendered them unable to cope with the barbarian hosts.
Rome was never so rich as when she fell into the hands of Goths and
Vandals. But the empire, under the old constitution, might have
protected itself against external enemies. The mortal wound to Roman
power and glory was inflicted by traitors.

* * * * *

AUTHORITIES. - Niebuhr, Lectures on the History of Rome; Mommsen, History
of Rome; Arnold, History of Rome; Merivale, History of the Romans;
Gibbon, Decline and Fall; Smith's Dictionary of Greek and Roman
Antiquities gives the details, and points out the old classical
authorities, as does Napoleon's Life of Caesar. Dionysius, Polybius,
Livy, Plutarch, Cicero, Sallust, all shed light on important points. See
also Gottling, _Gesch der Rom. Staat_. A large catalogue of writers
could be mentioned, but allusion is only made to those most accessible
to American readers.




CHAPTER VI.

ROMAN JURISPRUDENCE.


If the Romans showed great practical sagacity in distributing political
power among different classes and persons, their laws evince still
greater wisdom. Jurisprudence is generally considered to be their
indigenous science. It is for this they were most distinguished, and by
this they have given the greatest impulse to civilization. Their laws
were most admirably adapted for the government of mankind, but they had
a still higher merit; they were framed, to a considerable degree, upon
the principles of equity or natural justice, and hence are adapted for
all ages and nations, and have indeed been reproduced by modern
lawgivers, and so extensively, as to have formed the basis of many
modern codes. Hence it is by their laws that the Romans have had the
greatest influence on modern times, and these constitute a wonderful
monument of human genius. If the Romans had bequeathed nothing but laws
to posterity, they would not have lived in vain. These have more
powerfully affected the interests of civilization than the arts of
Greece. They are as permanent in their effects as any thing can be in
this world - more so than palaces and marbles. The latter crumble away,
but the legacy of Gaius, of Ulpian, of Paulus, of Tribonian, will be
prized to the remotest ages, not only as a wonderful work of genius, but
for its practical utility. The enduring influence of Moses is chiefly
seen in his legislation, for this has entered into the Christian codes,
and is also founded on the principles of justice. It is for this chiefly
that he ranks with the greatest intellects of earth, whether he was
divinely instructed or not.

[Sidenote: Object for which laws are made.]

Roman laws were first made in reference to the political exigencies and
changes of the state, and afterwards to the relations of the state with
individuals, or of individuals with individuals. The former pertain more
properly to constitutional history; the latter belong to what is called
the science of jurisprudence, and only fall in with the scope of this
chapter. The laws enacted by the Roman people in their centuries, or by
the Senate, pertaining to political rights and privileges - those by
which power passed from the hands of patricians to plebeians, or from
the _populus_ to great executive officers - are highly important
and interesting in an historical or political sense. But the genius of
the Romans was most strikingly seen in the government of mankind; and it
therefore the relations between the governing and the governed, the laws
created for the general good, pertaining to property and crime and
individual rights, which, in this chapter, it is my chief object to
show.

[Sidenote: Greeks inferior to the Romans in jurisprudence.]

The Greeks, with all their genius, their great creation in literature,
philosophy, and art, did very little for civilization, which we can
trace, in the science of jurisprudence. They were too speculative for
such a practical science. Nevertheless their speculative wisdom was made
use of by Roman jurists. It was only so far as philosophy modified laws,
that the influence of Greece was of much account.

[Sidenote: Jurisprudence culminates with emperors.]

Nor did Roman jurisprudence culminate in its serene majesty till the
time of the emperors. It was not perfectly developed, until Justinian
consolidated it in the Code, the Pandects, and the Institutes. The
classical jurists may have laid the foundation; the superstructure was
raised under the auspices of those whom we regard as despots.

[Sidenote: Early legislation.]

[Sidenote: The Twelve Tables.]

Ingenious writers, like Vico and Niebuhr, have extended their researches
to the government of the kings, and advanced many plausible
speculations; but the earliest legislation worthy of notice, was the
celebrated code called the Twelve Tables, framed from the reports of the
commissioners whom the Romans sent to Athens and other Greek states, to
collect what was most useful in their legal systems. But scarcely any
part of the civil law contained in the Twelve Tables has come down to
us. All we know with certainty, is that it was the intention of the
decemviral legislation to bring the estates into closer connection, and
to equalize the laws for both. Nor do the provisions of the decemviral
code, with which we are acquainted, show that enlightened regard to
natural justice which characterized jurisprudence in its subsequent
development. It allowed insolvent debtors to be treated with great
cruelty; they could be imprisoned for sixty days, loaded with chains,
and then might be sold into foreign slavery. It sanctioned a barbarous
retaliation - an eye for an eye, and a tooth for a tooth. But it gave a
redress for lampoons or libels, allowed an appeal from the magistrate to
the people, and forbid capital punishment except by a decision of the
centuries. [Footnote: Lord Mackenzie, part 6.] Niebuhr maintains,
[Footnote: Lecture 25.] in his lectures on the History of Rome, that the
Twelve Tables conceded the right to every _pater familias_ of
making a will, by which regulation the child of a plebeian, by a
patrician mother, could succeed to his father's property, which was of
great importance, and a great step in natural justice. It is supposed
that the most important part of the decemviral legislation was
the _jus publicum_, [Footnote: Cicero, _De Legibus_.] or that
which refers to the Roman constitution. The Twelve Tables obtained among
the Romans a peculiar reverence; they were committed to memory by the
young; they were transcribed with the greatest care, and were considered
as the fountain of right. They were approved by the _comitia
centuriata_, which was the supreme authority, and in the time of
Appius Claudius was composed of patricians alone. If Niebuhr is right in
his statement that the power of making wills was given to plebeians, it
shows a greater liberality on the part of patricians than what they
generally have had credit for, and is hardly to be reconciled with the
statement of Lord Mackenzie, that all marriages between patricians and
plebeians were prohibited by the new code.

[Sidenote: The Twelve Tables the basis of Roman law.]

[Sidenote: Progress of Roman Law.]

The laws of the Twelve Tables were the basis of all the laws, civil and
religious. But the edicts of the praetors, who were the great equity
judges, as well as the common-law magistrates, [Footnote: Maine's
_Ancient Law_, p. 67.] proclaimed certain changes which custom and
the practice of the courts had introduced, and these, added to the
_leges populi_ or laws proposed by the consul and passed by the
centuries, the _plebiscita_ or laws proposed by the tribunes and
passed by the tribes, and the _senatus consulta_, gradually swelled
the laws to a great number. Three thousand plates of brass, containing
these various laws, were deposited in the capitol. [Footnote: Suetonius,
_In Vespa_.] Subtleties and fictions were introduced by the lawyers
to defeat the written statutes, and jurisprudence became complicated,
even in the time of Cicero. The opinions of eminent lawyers were even
adopted by the legal profession, and were recognized by the courts. The
evils of a complicated jurisprudence were so evident in the seventh
century of the city, that Q. Mucius Scaevola, a great lawyer, when
consul, published a scientific elaboration of the civil law. Cicero
studied law under him, and his contemporaries, Alfenus Varus and Aeulius
Gallus, wrote learned treatises, from which extracts appear in the
Digest. Caesar contemplated a complete revision of the laws, but did not
live long enough to carry out his intentions. His legislation, so far as
he directed his mind to it, was very just. Among other laws was one



Online LibraryJohn LordThe Old Roman World, : the Grandeur and Failure of Its Civilization → online text (page 18 of 50)