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- Lectures and Essays - 4/67 -

brooded over the terrors of the next world, and sought in the constant practice of human sacrifice a relief from its superstitious fear. If the Roman could tolerate the Etruscans, be merciful to them, and manage them well, he was qualified to deal in a statesmanlike way with the peculiarities of almost any race, except those whose fierce nationality repelled all management whatever. In borrowing from the Etruscans some of their theological lore and their system of divination, small as the value of the things borrowed was, the Roman, perhaps, gave an earnest of the receptiveness which led him afterwards, in his hour of conquest, to bow to the intellectual ascendency of the conquered Greek, and to become a propagator of Greek culture, though partly in a Latinized form, more effectual than Alexander and his Orientalized successors.

In the second place, the geographical circumstances of Rome, combined with her character, would naturally lead to the foundation of colonies and of that colonial system which formed a most important and beneficent part of her empire. We have derived the name colony from Rome; but her colonies were just what ours are not, military outposts of the empire, _propugnacula imperii_. Political depletion and provision for needy citizens were collateral, but it would seem, in early times at least, secondary objects. Such outposts were the means suggested by Nature, first of securing those parts of the plain which were beyond the sheltering range of the city itself, secondly of guarding the outlets of the hills against the hill tribes, and eventually of holding down the tribes in the hills themselves. The custody of the passes is especially marked as an object by the position of many of the early colonies. When the Roman dominion extended to the north of Italy, the same system was pursued, in order to guard against incursions from the Alps. A conquering despot would have planted mere garrisons under military governors, which would not have been centres of civilization, but probably of the reverse. The Roman colonies, bearing onwards with them the civil as well as the military life of the Republic, were, with the general system of provincial municipalities of which they constituted the core, to no small extent centres of civilization, though doubtless they were also to some extent instruments of oppression. "Where the Roman conquered he dwelt," and the dwelling of the Roman was, on the whole, the abode of a civilizing influence. Representation of dependencies in the sovereign assembly of the imperial country was unknown, and would have been impracticable. Conquest had not so far put off its iron nature. In giving her dependencies municipal institutions and municipal life, Rome did the next best thing to giving them representation. A Roman province with its municipal life was far above a satrapy, though far below a nation.

Then how came Rome to be the foundress and the great source of law? This, as we said before, calls for a separate explanation. An explanation we do not pretend to give, but merely a hint which may deserve notice in looking for the explanation. In primitive society, in place of law, in the proper sense of the term, we find only tribal custom, formed mainly by the special exigencies of tribal self- preservation, and confined to the particular tribe. When Saxon and Dane settle down in England side by side under the treaty made between Alfred and Guthurm, each race retains the tribal custom which serves it as a criminal law. A special effort seems to be required in order to rise above this custom to that conception of general right or expediency which is the germ of law as a science. The Greek, sceptical and speculative as he was, appears never to have quite got rid of the notion that there was something sacred in ancestral custom, and that to alter it by legislation was a sort of impiety. We in England still conceive that there is something in the breast of the judge, and the belief is a lingering shadow of the tribal custom, the source of the common law. Now what conditions would be most favourable to this critical effort, so fraught with momentous consequences to humanity? Apparently a union of elements belonging to different tribes such as would compel them, for the preservation of peace and the regulation of daily intercourse, to adopt some common measure of right. It must be a union, not a conquest of one tribe by another, otherwise the conquering tribe would of course keep its own customs, as the Spartans did among the conquered people of Laconia. Now it appears likely that these conditions were exactly fulfilled by the primaeval settlements on the hills of Rome. The hills are either escarped by nature or capable of easy escarpment, and seem originally to have been little separate fortresses, by the union of which the city was ultimately formed. That there were tribal differences among the inhabitants of the different hills is a belief to which all traditions and all the evidence of institutions point, whether we suppose the difference to have been great or not and whatever special theory we may form as to the origin of the Roman people. If the germ of law, as distinguished from custom, was brought into existence in this manner, it would be fostered and expanded by the legislative exigencies of the political and social concordat between the two orders, and also by those arising out of the adjustment of relations with other races in the course of conquest and colonization.

Roman law had also, in common with Roman morality, the advantage of being comparatively free from the perverting influences of tribal superstition. [Footnote: From religious perversion Roman law was eminently free: but it could not be free from perverting influences of a social kind; so that we ought to be cautious, for instance, in borrowing law on any subject concerning the relations between the sexes from the corrupt society of the Roman Empire.] Roman morality was in the main a rational rule of duty, the shortcomings and aberrations of which arose not from superstition, but from narrowness of perception, peculiarity of sphere, and the bias of national circumstance. The auguries, which were so often used for the purposes of political obstruction or intrigue, fall under the head rather of trickery than of superstition.

Roman law in the same manner was a rule of expediency, rightly or wrongly conceived, with comparatively little tincture of religion. In this again we probably see the effect of a fusion of tribes upon the tribal superstitions. "Rome," it has been said, "had no mythology." This is scarcely an overstatement; and we do not account for the fact by saying that the Romans were unimaginative, because it is not the creative imagination that produces a mythology, but the impression made by the objects and forces of nature on the minds of the forefathers of the tribe.

A more tenable explanation, at all events, is that just suggested, the disintegration of mythologies by the mixture of tribes. A part of the Roman religion--the worship of such abstractions as Fides, Fortuna, Salus, Concordia, Bellona, Terminus--even looks like a product of the intellect posterior to the decay of the mythologies, which we may be pretty sure were physical. It is no doubt true that the formalities which were left--hollow ceremonial, auguries, and priesthoods which were given without scruple, like secular offices, to the most profligate men of the world--were worse than worthless in a religious point of view. But historians who dwell on this fail to see that the real essence of religion, a belief in the power of duty and of righteousness, that belief which afterwards took the more definite form of Roman Stoicism, had been detached by the dissolution of the mythologies, and exerted its force, such as that force was, independently of the ceremonial, the sacred chickens, and the dissipated high priests. In this sense the tribute paid by Polybius to the religious character of the Romans is deserved; they had a higher sense of religious obligation than the Greeks; they were more likely than the Greeks, the Phoenicians, or any of their other rivals, to swear and disappoint not, though it were to their own hindrance; and this they owed, as we conceive, not to an effort of speculative intellect, which in an early stage of society would be out of the question, but to some happy conjunction of circumstances such as would be presented by a break-up of tribal mythologies, combined with influences favourable to the formation of strong habits of political and social duty. Religious art was sacrificed; that was the exclusive heritage of the Greek; but superior morality was on the whole the heritage of the Roman, and if he produced no good tragedy himself, he furnished characters for Shakespeare and Corneille.

Whatever set the Romans free, or comparatively free, from the tyranny of tribal religion may be considered as having in the same measure been the source of the tolerance which was so indispensable a qualification for the exercise of dominion over a polytheistic world. They waged no war on "the gods of the nations," or on the worshippers of those gods as such. They did not set up golden images after the fashion of Nebuchadnezzar. In early times they seem to have adopted the gods of the conquered, and to have transported them to their own city. In later times they respected all the religions except Judaism and Druidism, which assumed the form of national resistance to the empire, and worships which they deemed immoral or anti-social, and which had intruded themselves into Rome.

Another grand step in the development of law is the severance of the judicial power from the legislative and the executive, which permits the rise of jurists, and of a regular legal profession. This is a slow process. In the stationary East, as a rule, the king has remained the supreme judge. At Athens, the sovereign people delegated its judicial powers to a large committee, but it got no further; and the judicial committee was hardly more free from political passion, or more competent to decide points of law, than the assembly itself. In England the House of Lords still, formally at least, retains judicial functions. Acts of attainder were a yet more primitive as well as more objectionable relic of the times in which the sovereign power, whether king, assembly, or the two combined, was ruler, legislator, and judge all in one. We shall not attempt here to trace the process by which this momentous separation of powers and functions was to a remarkable extent accomplished in ancient Rome. But we are pretty safe in saying that the _praetor peregrinus_ was an important figure in it, and that it received a considerable impulse from the exigencies of a jurisdiction between those who as citizens came under the sovereign assembly and the aliens or semi-aliens who did not.

Whether the partial explanations of the mystery of Roman greatness which we have here suggested approve themselves to the reader's judgment or not, it may at least be said for them that they are _verae causae_, which is not the case with the story of the foster-wolf, or anything derived from it, any more than with the story of the prophetic apparitions of Jupiter on the Capitoline Hill.

With regard to the public morality of the Romans, and to their conduct and influence as masters of the world, the language of historians seems to us to leave something to be desired. Mommsen's tone, whenever controverted questions connected with international morality and the law of conquest arise, is affected by his Prussianism; it betokens the transition of the German mind from the speculative and visionary to the practical and even more than practical state; it is premonitory not only of the wars with Austria and France, but of a coming age in which the forces of natural selection are again to operate without the restraints imposed by religion, and the heaviest fist is once more to make the law. In the work of Ihne we see a certain recoil from Mommsen, and at the same time an occasional inconsistency and a want of stability in the principle of judgment. Our standard ought not to be positive but relative. It was the age of force and conquest, not only with the Romans but with all nations; _hospes_ was _hostis_. A perfectly independent development of Greeks, Romans, Etruscans, Phoenicians, and all the other nationalities, might perhaps have been the best thing for humanity. But this was out of the question; in that stage of the world's existence contact was war, and the end of war was conquest or destruction, the first of which was at all events preferable to the second. What empire then can we imagine which would have done less harm or more good than the Roman? Greek intellect showed its superiority in speculative politics as in all other departments of speculation, but as a practical politician the Greek was not self-controlled or strong, and

Lectures and Essays - 4/67

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