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THE FOUNDATIONS OF THE NINETEENTH CENTURY -- VOLUMES 1 & 2 |
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SECOND CHAPTER: ROMAN LAW
To define in clear terms what we have inherited from Rome, what out of that vast manufactory of human destinies still exercises a living influence, is certainly impossible, unless we have a clear conception of what Rome was. Even Roman Law in the narrower sense of the word (Private Law), which, as everyone knows, forms the chief material on which all juristical minds are to this day trained, and provides the actual basis even for the freest, most divergent and more modern systems of law, cannot be judged in a way that will give a proper estimate of its peculiar value, if it be simply regarded as a kind of lay Bible, a canon, which has taken a permanent place, hallowed by tens of centuries. If this blind attachment to Roman legal dicta is the result of a superficial historical appreciation, the same may be said of the violent reaction against Roman Law. Whoever studies this law and its slow tedious development, even if only in general outlines, will certainly form a different judgment. For then he will see how the Indo-European races [1] even in earliest times possessed certain clearly expressed fundamental legal convictions, which developed in different ways in the different races, without ever being able to attain to any full development; he will see that they could not do so because no branch could succeed in founding a free and at the same time a lasting State; then he will be surprised to perceive how this small nation of men of strong character, the Romans, established both State and Law -- the State by everyone desiring permanently to establish his own personal right, the Law by everyone possessing the self-control to make the necessary sacrifices and to be absolutely loyal to the common weal; and whoever gains this insight will certainly never speak except with the greatest reverence of Roman Law as one of the most valuable possessions of mankind. At the same time he will certainly perceive that the highest quality of Roman Law and the one most worthy of imitation is its exact suitability to definite conditions of life. He cannot, however, fail to note that State and Law -- both creations of the "born nation of lawyers" [2] -- are here inseparable, and that we cannot understand either this State or this Law, if we have not a clear conception of the Roman people and its history. This is all the more indispensable, as we have inherited from the Roman idea of State as well as from Roman Private Law a great deal that still lives to-day-not to speak of the political relations actually created by the Roman idea of State, relations to which we owe the very possibility of our existence to-day as civilised nations. Hence it may be opportune to ask ourselves, What kind of people were the Romans? What is their significance in history? Naturally only a very hasty sketch can be given here: but it may, I hope, suffice to give us a clear idea of the political achievements of this great people in their essential outlines and to characterise with clearness the somewhat complicated nature of the legacy of politics and of political law that has been handed down to our century. Then and then only will it be feasible and profitable to consider our legacy of private law. One would think that, as the Latin language and the history of Rome play such an important role in our schools, every educated person would at least possess a clear general conception of the growth and achievements of the Roman people. But this is not the case, and indeed it is not possible with the usual methods of instruction. Of course every person of culture is, to a certain point, at home in Roman history: the legendary Romulus, Numa Pompilius, Brutus, the Horatii and Curiatii, the Gracchi, Marius, Sulla, Caesar, Pompey, Trajan, Diocletian and countless others, are all at least just as familiar to us (i.e., in regard to names and dates) as our own great men; a youth who could not give information about the Second Punic War or confused the different Scipios would feel just as ashamed as if he could not explain the advantages of the Roman legions and maniples over the Macedonian phalanx. One must also admit that Roman history, as it is usually presented to us, is a remarkably rich store of interesting anecdotes; but the knowledge one derives from it is one-sided and absolutely defective. The whole history of Rome almost assumes the appearance of a great and cruel sport, played by politicians and generals, whose pastime it is to conquer the world, whereby they achieve many marvellous results in the art of systematic oppression of foreign peoples and egging on of their own, as well as in the equally noble art of inventing new stratagems of war and of putting them into practice with as large herds of human cattle as possible. There is beyond doubt some truth in this view. There came a time in Rome when those who considered themselves aristocrats chose war and politics as their life-work, instead of taking them up only in time of necessity. Just as with us a short time ago, a man of family could only become an officer, diplomatist or administrative official, so the "upper ten thousand" in later Rome could enter only three professions that did not degrade them socially -- res militaris, juris scientia and eloquentia. [3] And as the world was still young and the province of science not too large to be covered, a man of ability could master all three; if in addition he had plenty of money, his qualifications for politics were complete. It is only necessary to read over again the letters of Cicero to see from his simple confessions, hopelessly entrammelled as he was in the ideas of his time, and unable to look beyond his own nose, how mighty Rome and its destinies became the play-ball of idle dawdlers and how much truth there is in the assertion that Rome was not made but unmade by its politicians. Politics have their peculiarities in other countries as well as in Rome. From Alexander to Napoleon, one can hardly over- estimate the power of criminal obstinacy in purely political heroes. A brief discussion of this point is all the more appropriate in this chapter, as Rome in particular is rightly regarded as a specifically political State and we may therefore hope to learn from it how and by whom great and successful politics are achieved. What Gibbon says about kings in general, that "their power is most effective in destruction," is true of almost all politicians -- as soon as they possess sufficient power. I am not sure that it was not the wise Solon who made a prosperous development of the Athenian State impossible for all time, by doing away with the historically given composition of the population from various tribes and introducing an artificial class- ivision according to property. This so-called timocracy (honour to him who has money) comes in, it is true, of its own accord almost everywhere to a smaller or greater extent, and Solon at least took the precaution of making duties increase with increase of wealth; nevertheless he it was with his constitution that laid the axe to the root, from which -- however painfully -- the Athenian State had grown. [4] A less important man would not have ventured to make such a revolutionary change in the natural course of development, and that would probably have been a blessing. And can we form a different opinion of Julius Caesar? Of the famous generals in the history of the world as a politician he probably played the greatest part; in the most widely different spheres (think only of the improvement of the calendar, the undertaking of a universal legal code, the founding of the African colony) he revealed a penetrating understanding; as an organising genius he would, I think, not have been surpassed by Napoleon, under equally favourable conditions -- and withal he had the inestimable advantage of being not a foreign condottiere, like Napoleon or Diocletian, but a good genuine Roman, firmly rooted in his hereditary fatherland, so that his individual arbitrariness (as in the case of Lycurgus) would certainly not have erred far from the plumb-line of what suited his nation. And yet it is this very man and no other who bent the tough tree of life of the Roman constitution and gave it over to inevitable decay and ruin. For the remarkable thing in pre-Caesarean Rome is not that the city had to experience so many violent internal storms -- in the Case of a structure so incomparably elastic that is natural, the clash of interests and the never-resting ambition of professional politicians saw to that in Rome as elsewhere -- no, what fills us with wonder and admiration is rather the vitality of this constitution. Patricians and Plebeians might periodically be at each other's throats: yet an invisible power held them firmly together; as soon as new conditions were provided for by a new compromise, the Roman State stood once more stronger than ever. [5] Caesar was born in the midst of one of these severe crises; but perhaps it appears to us in history worse than all previous ones-both because it is nearer to us in time, and we are therefore more fully informed of it, and because we know the issue which Caesar brought about. I for my part consider the interpretation which the philosophy of history gives to these events a pure abstraction. Neither the rough hand of the impetuous, passionate Plebeian Marius nor the tiger-like cruelty of the coolly calculating Patrician Sulla would have inflicted fatal wounds upon the Roman constitution. Even the most critical danger-the freeing of many thousands of slaves and the bestowing of citizenship on many thousands of those freed-men (and that for political, immoral reasons) -- Rome would soon have surmounted. Rome possessed the vitality to ennoble slavery, that is, to give it the definite Roman character. Only a mighty personality, one of those abnormal heroes of will, such as the world scarcely produces once in a thousand years, could ruin such a State. It is said that Caesar was a saviour of Rome, snatched away too soon, before he could finish his work: this is false. When the great man arrived with his army on the banks of the Rubicon, he is said to have hesitatingly commanded a halt and reflected once more on the far- reaching consequences of his action; if he did not cross, he himself would be in danger, if he did cross the boundary marked by sacred law, he would involve the whole world (i.e., the Roman State) in danger: he decided for ambition and against Rome. The anecdote may be invented, Caesar at least lets us see no such inner struggle of conscience in his Civil War; but the situation is exactly described thereby. No matter how great a man may be, he is never free, his past imperatively prescribes the direction of his present; if once he has chosen the worse part, he must henceforth do harm, whether he wills it or not, and though he raise himself to an autocracy, in the fond hope that he henceforth has it in his power to devote himself wholly to doing what is good, he will experience in himself that " the might of Kings is most effective in destruction." Caesar had written to Pompey even from Ariminum to the effect that the interests of the republic were nearer his heart than his own life; [6] and yet Caesar had not long been all-powerful to do good, when his faithful friend Sallust had to ask him whether he had really saved or despoiled the republic? [7] At the best he had saved it as Virginius did his daughter. Pompey, as several contemporary writers tell us, would allow no one beside him, Caesar no one over him. Imagine what might have been the result for Rome if two such men, instead of being politicians, had acted as the servants of the Fatherland, as had been Roman custom hitherto! It is not my business to enter more fully into the subject briefly sketched here; my only object has been to show what a superficial knowledge we have of a people, if we study only the history of its politicians and generals. This is particularly the case with Rome. Whoever studies Rome merely from this point of view, no matter how industriously he may examine its history, can certainly arrive at no other result than did Herder, whose interpretation therefore will remain classic. To this man of genius Roman history is "the history of demons." Rome a "robbers' cave," what the Romans give to the world "devastating night," their "great noble souls, Caesars and Scipios," spend their life in murdering, the more men they have slaughtered in their campaigns, the warmer the praise that is paid them. [8] This is from a certain point of view correct; but the investigations of Niebuhr, Duruy and Mommsen (especially the last), as well as those of the brilliant historians of law in our century -- Savigny, Jhering and many others -- have brought to light another Rome, to the existence of which Montesquieu had been the first to call attention. Here the important thing was to discover and put in its right light what the old Roman historians, intent on celebrating battles, describing conspiracies, slandering enemies and flattering politicians who paid well, had passed by unnoticed or at any rate had never duly appreciated. A people does not become what the Romans have become in the history of mankind by means of murder and robbery, but in spite of it; no people produces statesmen and warriors of such admirably strong character as Rome did, if it does not itself supply a broad, firm and sound basis for strength of character. What Herder and so many after him call Rome can therefore be only a part of Rome, and indeed not the most important part. The exposition of Augustine in the fifth book of his De civitate Dei is, in my judgment, far happier; he calls attention particularly to the absence of greed and selfishness among the Romans and says that their whole will proclaimed itself in the one resolution, "either to live free or die bravely" (aut fortiter emori aut liberos vivere); and the greatness of the Roman power, as well as its durability, he ascribes to this moral greatness. In the general introduction to this book I spoke of "anonymous" powers, which shape the life of peoples; we have a brilliant example of this in Rome. I believe we might say without exaggeration that all Rome's true greatness was such an anonymous "national greatness." If in the case of the Athenians genius unfolded itself in the blossom, here it did so in the trunk and the roots; Rome was of all nations that with the strongest roots. Hence it was that it defied so many storms, and the history of the world required almost five hundred years to uproot the rotten trunk. Hence too, however, the peculiar grisaille of its history. In the case of the Roman tree everything went to wood, as the gardeners say; it bore few leaves, still fewer blossoms, but the trunk was incomparably strong; by its support later nations raised themselves aloft. The poet and the philosopher could not prosper in this atmosphere, this people loved only those personalities in whom it recognised itself, everything unusual aroused its distrust; "whoever wished to be other than his comrades passed in Rome for a bad citizen." [9] The people were right; the best statesman for Rome was he who did not move one hair's-breadth from what the people as a whole wished, a man who understood how to open the safety valve now here, now there, to meet the growing forces by the lengthening of pistons and by suitably arranged centrifugal balls and throttles, till the machine of State had quasi-automatically increased its size and perfected its administrative power; he must be, in short, a reliable mechanician: that was the ideal politician for this strong, conscious people whose interests lay entirely in the practical things of life. As soon as anyone overstepped this limit, he necessarily committed a crime against the common weal. Rome, I repeat -- for this is the chief point to grasp, and everything else follows from it -- Rome is not the creation of individual men, but of a whole people; in contrast to Hellas everything really great is here "anonymous"; none of its great men approaches the greatness of the Roman people as a whole. And so what Cicero says in his Republic (ii. I) is very correct and worth taking to heart: "The constitution of our State is superior to that of others for the following reason: in other places it was individual men who by laws and institutions founded the constitution, as, for example, Minos in Crete, Lycurgus in Lacedaemonia, in Athens (where change was frequent) at one time Theseus, at another Draco, then Solon, Clisthenes and many others l on the other hand, our Roman Commonwealth is founded not on the genius of a single man but of many men, nor did the span of a fleeting human life suffice to establish it, it is the work of centuries and successive generations." Even the General in Rome needed only to give free play to the virtues which his whole army possessed -- patience, endurance, unselfishness, contempt of death, practical common sense, above all the high consciousness of civic responsibility -- and he was sure of victory, if not to-day, then to-morrow. Just as the troops consisted of citizens, their commanders were magistrates who only temporarily changed the office of an administrator or councillor and judge for that of commander-in-chief; in general too it made little difference when in the regular routine of office the one official relieved the other in command; the idea "soldier" came into prominence only in the time of decline. It was not as adventurers but as the most domiciled of citizens and peasants that the Romans conquered the world. The question here forces itself upon us: is it at all admissible to apply the term conquerors to the Romans? I scarcely think so. The Teutonic peoples, the Arabians and the Turks were conquerors; the Romans, on the other hand, from the day they enter history as an individual, separate nation are distinguished by their fanatical, warm-hearted, and, perhaps, narrow-minded love for their Fatherland; they are bound to this spot of earth -- not particularly healthy nor uncommonly rich -- by inseverable ties of heart, and what drives them to battle and gives them their invincible power is first and foremost the love of home, the desperate resolve to yield up the independent possession of this soil only with their lives. That this principle entailed gradual extension of the State does not prove lust for conquest, it was the natural outcome of a compulsion. Even to-day might is the most important factor in international law, and we have seen how in our century the most peaceful of nations, like Germany, have had unceasingly to increase their military power, but only in the interests of their independence. How much more difficult was the position of Rome, surrounded by a confused chaos of peoples great and small -- close at hand masses of related races constantly warring against each other, farther afield an ever- threatening unexplored chaos of barbarians, Asiatics and Africans! Defence did not suffice; if Rome wished to enjoy peace, she had to spread the work of organisation and administration from one land to the other. Observe the contemporaries of Rome and see what a failure those small Hellenic States were owing to the lack of political foresight; Rome, however, had this quality as no people before or after. Its leaders did not act according to theoretical conceptions, as we might almost be inclined to believe to-day when we see so strictly logical a development; they rather followed an almost unerring instinct; this, however, is the surest of all compasses -- happy he who possesses it! We hear much of Roman hardness, Roman selfishness, Roman greed; yes! but was it possible to struggle for independence and freedom amid such a world without being hard? Can we maintain our place in the struggle for existence without first and foremost thinking of self? Is possession not power? But one fact has been practically disregarded, viz., that the unexampled success of the Romans is not to be looked upon as a result of hardness, selfishness, greed-these raged all around in at least as high a degree as among the Romans, and even to-day no great change has taken place -- no, the successes of the Romans are based on intellectual and moral superiority. In truth a one-sided superiority; but what is not one-sided in this world? And it cannot be denied that in certain respects the Romans felt more intensely and thought more acutely than any other men at any time, and they were in addition peculiar in this, that in their case feeling and thinking worked together and supplemented each other. I have already mentioned their love of home. That was a fundamental trait of the old Roman character. It was not the purely intellectual love of the Hellenes, bubbling over and rejoicing in song, yet ever prone to yield to the treacherous suggestions of selfishness; nor was it the verbose love of the Jews: we know how very pathetically the Jews sing of the "Babylonian captivity," but, when sent home full-handed by the magnanimous Cyrus, prefer to submit to fines and force only the poorest to return, rather than leave the foreign land where they are so prosperous; no, in the case of the Romans it was a true, thoroughly unsentimental love that knew few words, but was ready for any sacrifice; no man and no woman among them ever hesitated to sacrifice their lives for the Fatherland. How can We explain so unmeasured an affection? Rome was (in olden times) not a wealthy city; without crossing the boundaries of Italy one could see much more fruitful regions. But what Rome gave and securely established was a life morally worthy of man. The Romans did not invent marriage, they did not invent law, they did not invent the constitutional freedom-giving State; all that grows out of human nature and is found everywhere in some form and to some degree; but what the Aryan races had conceived under these notions as the bases of all morality and culture had nowhere been firmly established till the Romans established it. [10] Had the Hellenes got too near Asia? Were they too suddenly civilised? Had the Celts, who were by nature endowed with almost as much fire, become so savage in the wild North that they were no longer able to construct anything, to organise anything, or to found a State? [11] Or was it not rather that blood-mixtures within the common mother race, and at the same time the artificial selection necessitated by geographical and historical conditions tended to produce abnormal gifts (naturally with accompanying phenomena of reversion)? [12] I do not know. Certain it is, however, that previous to the Romans there was no sacred, worthy and at the same time practical regulation of matters relating to marriage and family; no more was there a rational law resting on a sure foundation capable of being widened, or a political organisation able to resist the storms of a chaotic time. Though the simply constructed mechanism of the old Roman State might frequently be awkward in its working and require thorough repairs, it was yet a splendid structure well adapted to the time and to its purpose. In Rome, from the first, the idea of Law had been finely conceived and finely carried into effect; moreover its limitations were in keeping with the conditions. Still more was this the case with the family. This institution was to be found in Rome alone -- and in a form more beautiful than the world has ever since seen! Every Roman citizen, whether Patrician or Plebeian, was lord, yea, king in his house: his will extended even beyond death by the unconditional freedom of bequest, and the sanctity of the last testament; his home was assured against official interference by more solid rights than ours; in contrast to the Semitic patriarchate he had introduced the principle of agnation [13] and thereby swept entirely aside the interference of mothers-in- aw and women as a whole; on the other hand, the materfamilias was honoured, treasured, loved like a queen. Where was there anything to compare with this in the world at that time? Outside of civilisation perhaps; inside it nowhere. And so it was that the Roman loved his home with such enduring love and gave his heart's blood for it. Rome was for him the family and the law, a rocky eminence of human dignity in the midst of a surging sea. Let no one fancy that anything great can be achieved in this world unless a purely ideal power is at work. The idea alone will of course not suffice; there must also be a tangible interest, even should it be, as in the case of the martyrs, an interest pertaining to the other world; without an additional ideal element the struggle for gain alone possesses little power of resistance; higher power of achievement is supplied only by a "faith," and that is what I call an "ideal impulse" in contrast to the direct interest of the moment -- be that last possession or anything else whatever. As Dionysius says of the ancient Romans, "they thought highly of themselves and could not therefore venture to do anything unworthy of their ancestors" (i. 6); in other words, they kept before their eyes an ideal of themselves. I do not mean the word "ideal" in the degenerate, vague sense of the "blue flower" of Romance, but in the sense of that power which impelled the Hellenic sculptor to form the god from out the stone, and which taught the Roman to look upon his freedom, his rights, his union with a woman in marriage, his union with other men for the common weal, as something sacred, as the most valuable gift that life can give. A rock, as I said, not an Aristophanic Cloud-cuckoo-land. As a dream, the same feeling existed more or less among all Indo-Europeans: we meet with a certain holy awe and earnestness in various forms among all the members of this family; the persevering power to realise things practically was, however, given to no one so much as to the Roman. Do not believe that" robbers " can achieve results such as the Roman State, to the salvation of the world, achieved. And when once you have recognised the absurdity of such a view, search deeper and you will see that these Romans were unsurpassed as a civilising power, and that they could only be that because, though they had great faults and glaring intellectual deficiencies, they yet possessed high mental and moral qualities. THE STRUGGLE AGAINST THE SEMITES Mommsen tells (i. 321) of the alliance between the Babylonians and the Phoenicians to subdue Greece and Italy, and is of opinion that "at one stroke freedom and civilisation would have been swept off the face of the earth," We should weigh carefully what these words mean when uttered by a man who commands the whole field as no one else does; freedom and civilisation (I should rather have said culture, for how can one deny civilisation to the Babylonians and Phoenicians, or even to the Chinese?) would have been destroyed, blotted out for ever! And then take up the books which give a detailed and scientific account of the Phoenician and Babylonian civilisation, in order to see clearly what foundation there is for such a far-reaching statement. It will not be difficult to see what distinguishes a Hellenic "Colony" from a Phoenician Factory: and from the difference between Rome and Carthage we shall readily understand what an ideal power is, even in the sphere of the driest, most selfish politics of interest. How suggestive is that distinction which Jhering (Vorgeschichte, p. 176) teaches us to draw between the "commercial highways" of the Semites and the "military roads" of the Romans: the former the outcome of the tendency to expansion and possession; the latter the result of the need of concentrating their power and defending the homeland. We shall also learn to distinguish between authentic" robbers," who only civilise in as far as they understand how to take up and utilise with enviable intelligence all discoveries that have a practical worth and to encourage in the interests of their commerce artificial needs in foreign peoples, but who otherwise rob even their nearest relations of every human right -- who nowhere organise anything but taxes and absolute slavery, who in general, no matter where they plant their foot, never seek to rule a country as a whole under systematic government, and, being alive only to their commercial interests, leave everything as barbarous as they find it: we shall, as I say, learn to distinguish between such genuine robbers and the Romans, who, in order to retain the blessings that attend the order reigning in their midst, are compelled -- beginning from that unchanging centre, the home -- slowly and surely to extend their ordering and clearing influence all round; they never really conquer (when they can help it); they spare and respect every individuality; but withal they organise so excellently that people approach them with the prayer to be allowed to share in the blessings of their system; [14] their own splendid "Roman law" they generously make accessible to ever- ncreasing numbers, and they at the same time unite the various foreign legal systems, taking the Roman as a basis, in order gradually to evolve therefrom a "universal international law." [15] This is surely not how robbers act. Here we have rather to recognise the first steps towards the permanent establishment of Indo-European ideals of freedom and civilisation. Livy says with justice: "It was not only by our weapons but also by our Roman legislation that we won our far-reaching influence." It is clear that the commonly accepted view of Rome as the conquering nation above all others is very one-sided. Indeed even after Rome had broken with its own traditions, or rather when the Roman people had in fact disappeared from the earth, and only the idea of it still hovered over its grave, even then it could not depart far from this great principle of its life: even the rough soldier-emperors were unable to break this tradition. And thus it is that the real military hero -- as individual phenomenon -- does not occur at all among the Romans. I will not make any comparisons with Alexander, Charles XII. or Napoleon; I ask, however, whether the one man Hannibal, as an inventive, audacious, arbitrary prince of war, has not displayed more real genius than all the Roman imperators taken together. It need scarcely be stated that Rome fought neither for a Europe of the future nor in the interests of a far-reaching mission of culture, but simply for itself; but thanks to this very fact, that it fought for its own interests with the reckless energy of a morally strong people, it has preserved from sure destruction that "intellectual development of mankind which depends upon the Indo-Teutonic race." This is best seen clearly in the most decisive of all its struggles, that with Carthage. If Rome's political development had not been so strictly logical up till then, if it had not betimes subdued and disciplined the rest of Italy, the deadly blow to freedom and civilisation mentioned above would assuredly have been dealt by the allied Asiatics and Carthaginians. And how little a single hero can do in the face of such situations of world-wide historical moment, although he alone, it may be, has taken a comprehensive view of them, is shown by the fate of Alexander, who having destroyed Tyre meditated embarking on a campaign against Carthage, but at his early death left nothing behind but the memory of his genius. The long-lived Roman people, on the other hand, was equal to that great task, which it finally summed up in the monumental sentence, delenda est Carthago. What laments and moralisings we have had on the destruction of Carthage by the Romans, from Polybius to Mommsen! It is refreshing to meet a writer who, like Bossuet, simply says: "Carthage was taken and destroyed by Scipio, who in this showed himself worthy of his great ancestor," without any moral indignation, without the well-worn phrase that all the suffering which later befell Rome was a retribution for this misdeed. I am not writing a history of Rome and do not therefore require to sit in judgment on the Romans; but one thing is as clear as the noonday sun; if the Phoenician people had not been destroyed, if its survivors had not been deprived of a rallying-point by the complete destruction of their last city, and compelled to merge in other nations, mankind would never have seen this nineteenth century, upon which, with all due recognition of our weaknesses and follies, we yet look back with pride, justified in our hopes for the future. The least mercy shown to a race of such unparalleled tenacity as the Semites would have sufficed to enable the Phoenician nation to rise once more; in a Carthage only half-burned the torch of life would have glimmered beneath the ashes, to burst again into flame as soon as the Roman Empire began to approach its dissolution. We are not yet free of peril from the Arabs, [16] who long seriously threatened our existence, and their creation, Mohammedanism, is the greatest of all hindrances to every progress of civilisation, hanging like a sword of Damocles over our slowly and laboriously rising culture in Europe, Asia and Africa; the Jews stand morally so high above all other Semites that one may hardly name them in conjunction with these (their ancestral enemies in any case from time immemorial), and yet we should need to be blind or dishonest, not to confess that the problem of Judaism in our midst is one of the most difficult and dangerous questions of the day; now imagine in addition a Phoenician nation, holding from the earliest times all harbours in their possession, monopolising all trade, in possession of the richest capitals in the world and of an ancestral national religion (Jews so to speak who had never known Prophets) ... ! It is no fantastic philosophising on history but an objectively demonstrable fact that, under such conditions, that which we to-day call Europe could never have arisen. Once more I refer to the learned works on the Phoenicians, but above all, because available to everyone, to the splendid summary in Mommsen's Romische Geschichte, Book III. chap. i., "Carthage." The intellectual barrenness of this people was really horrifying. Although destiny made the Phoenicians brokers of civilisation, yet this never inspired them to invent anything whatever; civilisation remained for them altogether something absolutely external; of what we call "culture" they had not the least notion, even to the last: clad in magnificent garments, surrounded by works of art, in possession of all the knowledge of their time, they continued as before to practise sorcery, offered human sacrifices and lived in such a pit of unspeakable vice that the most degraded Orientals turned in disgust from them. With regard to their share in the spread of civilisation Mommsen says: "This they have done more as the bird scatters the seed [17] than as the sower sows the corn. The Phoenicians absolutely lacked the power, possessed by the Hellenes and even the Italic peoples, of civilising and assimilating the nations capable of being educated, with whom they came in contact. In the sphere of Roman conquest the Iberian and Celtic languages have disappeared before the Romance tongue; the Berbers of Africa speak the same language to-day as they did at the time of Hanna and the Barcidae. But the Phoenicians like all Aramaic peoples, in contrast to the Indo-Teutonic, lack above all the impulse to form States -- the brilliant idea of freedom that's self-governing." Where the Phoenicians settled, their constitution was, fundamentally, merely a "government of capitalists, consisting on the one hand of a city mob, without property, living from hand to mouth, treating the conquered people in the country districts as mere slave-cattle without rights, and on the other hand of merchant princes, plantation-owners and aristocratic governors." These are the men, this the fatal branch of the Semitic family, from which we have been saved by the brutal delenda est Carthago. And even if it should be true that the Romans in this case listened more than was their wont to the mean promptings of revenge, perhaps even of jealousy, all the more am I bound to admire the unerring certainty of instinct which induced them, even where they were blinded by evil passions, to strike down that which any cool, calculating politician gifted with the eye of the prophet would have been bound to urge them to destroy for the salvation of mankind. [18] A second Roman delenda has for the history of the world an almost equally inestimable importance: the delenda est Hierosolyma. Had it not been for this achievement (which we certainly owe as much to the Jews who have at all times rebelled against every system of government as to the long-suffering Romans) Christianity would hardly ever have freed itself from Judaism, but would have remained, in the first instance, a sect among sects. The might of the religions idea, however, would have prevailed in the end; as to that there can be no question: the enormous and increasing spread of the Jewish Diaspora [19] before the time of Christ proves it; we should therefore have received a Judaism reformed by Christian influence and ruling the world. Perhaps the objection may be urged that that has come to pass, and that it correctly describes our Christian Church. Certainly, the objection is in part justifiable; no rightly thinking man will deny the share that Judaism has in it. But when we see how in earliest times the followers of Christ demanded the strict observance of the Jewish "law," how they, less liberal than the Jews of the Diaspora, took into their community no " heathens" who had not submitted to the mark of circumcision common to all Semites; when we think of the struggles which the Apostle Paul (the Apostle of the heathen) had to wage till his death with the Jew-Christians, and that even much later, in the Revelation of St. John (iii. 9) he and his followers are scorned as being "of the synagogue of Satan which say they are Jews and are not, but do lie"; when we see the authority of Jerusalem and its temple continue to be simply invincible, even inside the Pauline Christendom, so long as both actually did stand intact, [20] then we cannot doubt that the religion of the civilised world would have pined under the purely Jewish primacy of the city of Jerusalem, if Jerusalem had not been destroyed by the Romans. Ernst Renan, certainly no enemy of the Jews, has in his Origines du Christianisme (iv. chap. xx.) eloquently shown what an "immense danger" would have lain therein. [21] Still worse than the commercial monopoly of the Phoenicians would have been the religious monopoly of the Jews; under the leaden weight of these born dogmatists and fanatics all freedom of thought and faith would have disappeared from the world; the flatly materialistic view of God would have been our religion, pettifoggery our philosophy. This too is no imaginary picture, only too many facts speak for it; for what is that rigid, illiberal, intellectually narrow dogmatising of the Christian Church -- a thing undreamt of by the Aryan -- what is that disgraceful, bloodthirsty fanaticism which runs through all the ages down to our own nineteenth century, that curse of hatred that has clung to the religion of love from the beginning and from which Greeks and Romans, Indians and Chinese, Persians and Teutonic peoples turn with horror? What is it, if not the shadow of that temple, in which sacrifices were offered to the god of anger and vengeance, a dark shadow cast over the youth of the heroic race "that from out the darkness strives to reach the light"? Without Rome it is certain that Europe would have remained a mere continuation of the Asiatic chaos. Greece always gravitated towards Asia, till Rome tore it away. It is the work of Rome that the centre of gravity of culture has been once and for all removed to the west, that the Semitic-Asiatic spell has been broken and at least partly cast aside, that the predominantly Indo-Teutonic Europe became henceforth the beating heart and thinking brain of all mankind. While this State fought for its own practical (but, as we saw, not unideal) interests without the least regard for others -- often cruelly, always sternly, but seldom ignobly -- it has put the house in readiness, the strong citadel in which our race, after long aimless wanderings, was to settle down and organise itself for the salvation of mankind. For the accomplishment of Rome's work so many centuries were necessary, and in addition so high a degree of that unerring, self-willed instinct, which hits the mark, even where it seems to be going senselessly astray, doing good even where its will is baneful, that it was not the fleeting existence of pre-eminent individuals but the dogged unity of a steel- hardened people, working almost like a force of nature, that was the right and only efficacious thing. Hence it is that so-called "political history," that history which tries to build up the life of a people from the biographies of famous men, the annals of war and diplomatic archives, is so inappropriate here; it not only distorts, but fails to reveal in any way those things that are the most essential. For what we, looking back and philosophising, regard as the office or vocation of Rome in the history of the world, is surely nothing else than an expression for the bird's-eye view of the character of this people as a whole. And here we must admit that the politics of Rome moved in a straight and -- as later times have shown -- perfectly correct line, so long as they were not in the hands of professional politicians. Caesar's period was the most confused and most productive of evil; both people and instinct were then dead, but the work continued to exist, and, embodied with it, the idea of the work, but it was nowhere capable of being set apart as a formula and as a law for future actions, for the simple reason that the work had not been reasoned, considered and conscious, but unconscious and accomplished of necessity. After the fall of the true Roman people this idea -- the idea of the Roman State -- came again to life in very different ways in the brains of individuals who were called to power. Augustus, for example. seems really to have been of the opinion that he had restored the Roman republic, otherwise Horace would certainly not have gone the length of praising him for it. Tiberius, who transformed "the insult to the majesty of the Roman people, "the crimen majestatis, which was punished even in former times, into quite a new crime, viz., "the insult to his own Caesarean person," took thereby a very great step towards dissipating into a mere idea the actual free State created by the people of Rome -- a step from which in the nineteenth century we have not yet gone back. But so firmly was the Roman idea planted in every heart that a Nero took his own life, because the Senate had branded him an "enemy of the republic." Soon, however, the proud assembly of Patricians found itself face to face with men who did not tremble before the magic words senatus populusque Romanus: the soldiers chose the bearer of the Roman Imperium; it was not long before Romans, and Italians as well, were excluded for ever from this dignity: Spaniards, Gauls, Africans, Syrians, Goths, Arabs, Illyrians followed one another; not one of them probably was even distantly related to those men who with sure instinct had created the Roman State. And yet the idea lived on; in the Spaniard Trajan it even reached a climax of brilliancy. Under him and his immediate followers it worked so expressly as an ordering civilising power, resorting to conquest only where the consolidation of peace unconditionally demanded it, that we are justified in saying that during the Antonine century Roman imperialism -- which had lived in the people previously only as an impulse, not as an end in view -- came to be conscious of itself, and that in a manner which was only possible in the minds of nobly thinking foreigners, who found themselves face to face with a strange idea, which they henceforth embraced with full objectivity, in order to set it in operation with loyalty and understanding. This period had a great influence on all future time; wherever with noble purpose the idea of a Roman Empire was again taken as a starting-point, it was done under the influence and in imitation of Trajan, Hadrian, Antoniuus Pius and Marcus Aurelius. And yet there is a peculiar soullessness in this whole period. Here the sway of understanding is supreme, the heart is dumb; the passionless mechanism affects even the soul, which does right not from love but from reason: Marcus Aurelius' "Monologues" are the mirror of this attitude of mind, and the inevitable reaction appears in the sexual aberrations of his wife Faustina. The root of Rome, the passionate love of the family, of the home, was tom out; not even the famous law against bachelors, with premiums for children (Lex Julia et Papia Poppaea) could again make marriage popular. Where the heart does not command, nothing is enduring. And now other foreigners usurped supreme power, this time men full of passion but devoid of understanding, African half-breeds, soldier Emperors, who saw in the Roman State nothing more than a gigantic barracks, and had no idea why Rome in particular should be the permanent headquarters. The second of them, Caracalla, even extended the Roman franchise to all the inhabitants of the Empire: thereby Rome ceased to be Rome. For exactly a thousand years the citizens of Rome (with whom those of the other cities of Italy and of other specially deserving States had gradually been put on an equal footing) had enjoyed certain privileges, but they had gained them by burdensome responsibility as well as by restless, incomparably successful, hard work; from now onward Rome was everywhere, that is, nowhere. Wherever the Emperor happened to be was the centre of the Roman Empire. Diocletian transferred his residence to Sirmium, Constantine to Byzantium, and even when a separate Western Roman Empire arose, the imperial capital was Ravenna or Milan, Paris, Aachen, Vienna, never again Rome. The extension of the franchise to all had another result: there were no longer any citizens. Caracalla, [22] the murderous, pseudo-Punic savage, used to be commended for his action and even to-day he has his admirers (see Leopold von Ranke, Weltgeschichte, ii, 195). In reality, however, he had, by cutting the last thread of historical tradition, i.e., of historical truth, destroyed also the last trace of that freedom, the indomitable, self-sacrificing and thoroughly ideal power of which had created the city of Rome and with it Europe, Political law was, of course, henceforth the same for all; it was the equality of absolute lawlessness. The word citizen (civis) gave way now to the term subject (subjectus): all the more remarkable, as the idea of being subject was as strange to all branches of the Indo-Europeans as that of supreme kingship, so that we see in this one transformation of the legal idea the incontestable proof of Semitic influence (according to Leist, Graco-italische Rechtsgeschichte, pp. 106, 108). The Roman idea certainly still lived on, but it had concentrated itself or, so to speak, become merged in one person -- the Emperor; the privileges of the Romans and their summary powers had not disappeared from the world, they had all been delegated to a single man: that is the course of events from Augustus to Diocletian and Constantine. The first Caesar had been satisfied with uniting in his own hands all the most important offices of State, [23] and that had been granted to him only for one definite object limited in respect of time, namely, to restore legal order in the civilised world (restauratio orbis); within three centuries things had come to this, that a single individual was invested not only with all offices but with all the rights of all the citizens. Just as in early times (at the time of the first successor to Augustus) the "majesty of the people" had become the "majesty" of one man, so gradually each and every power, each and every right passed over to him. Augustus had, like every other citizen, still given his vote in the Comitia; now there sits a monarch on the throne, whom one may only approach "reverentially" on one's knees, and before him all men are alike, for all, from the foremost statesman to the lowest peasant, are his subjects. And while thus the "great king" and with him all that belonged to his Court continually increased in riches and dignity, the rest sank ever lower: the citizen could no longer even choose his profession; the peasant, formerly the free proprietor of his ancestral estate, was the bondman of a master and bound to the soil; but death looses all bonds, and the day came when the tax-collector had to mark what were formerly the most fertile parts of the Empire in their papers as agri deserti. It is not my intention to trace further through history the idea of the Roman State; something will still have to be said on this matter in a later chapter; I shall restrict myself to reminding the reader that a Roman Empire -- in idea a direct continuation of the old Imperium -- legally existed till August 6, 1806, and that the oldest Roman office, that of Pontifex maximus, which was held by Numa Pompilius himself, is still in existence; the Papal stool is the last remnant of the old heathen world which has continued to live to the present day. [24] If what I have briefly pointed out is known to all, it has been brought forward in the hope that I might be able to demonstrate more vividly and suggestively than could be done by theoretical analysis the peculiarly complicated form of the political legacy which our century received from Rome. Here as elsewhere in this book learned considerations have no place; these are to be found in histories of constitutional law; here I bring forward only general observations, which are accessible and stimulating to all. In purely political matters we have inherited from Rome not a simple idea, not even anything so simple as what is embraced by the phrase "Hellenic art," however full of meaning that may be, but on the other hand there has come down to us a remarkable mixture of possessions of the greatest reality -- civilisation, law, organisation, administration, &c.; and at the same time of ideas which, though we may not comprehend them, are yet all- powerful; of notions which no one can fully grasp and which, nevertheless, for good and for evil, still influence our public life. We certainly cannot understand our own century thoroughly and critically, if we have not clear conceptions regarding this double political legacy. THE LEGACY OF CONSTITUTIONAL LAW Now that we have discussed political matters in the narrower sense, let us, before passing on to the consideration of Private Law, cast a glance at the constitutional and ideal legacy in general. So long as Rome was effectively engaged in positively creative work -- more than five hundred years before Caesar and then for more than a century in its agony [25] -- it might seem to us totally destitute of ideas; it only creates, it does not think. It creates Europe and destroys, as far as possible, Europe's nearest and most dangerous enemies. That is the positive legacy of this time. The countries, too, which Rome never subdued, as for example the greatest part of Germany, have received from Rome all the germs of constitutional order, as the fundamental condition of every civilisation. Our languages still show us that all administration goes back to Roman teaching or suggestion. We live to-day in conditions so securely established by order that we can scarcely conceive that it was ever otherwise; not one among ten thousand of us has the faintest idea of the organisation of the machine of State; everything seems to us necessary and natural, law, morals, religion, even State itself. And yet the establishment of this, the ordered, secure State, worthy of free citizens, was -- as all history proves -- a task extremely difficult to accomplish; India had a most noble religion, Athens perfect art, Babylonia a wondrous civilisation -- everything had been achieved by the founding of a free and at the same time stable State that guaranteed conditions of law; for this Herculean task an individual hero did not suffice, a whole nation of heroes was necessary -- each one strong enough to command, each one proud enough to obey, all unanimous, each one standing up for his own personal right. When I read Roman history I feel compelled to turn away with horror; but when I contemplate the two incomparable creations of this people, the ordered State and private law, I can only bow in silent reverence before such intellectual greatness. But this heroic people died out, and after its complete extinction there came, as we saw, a second period of Roman politics. Foreigners occupied the supreme power and foreign lawyers became the masters of public law and constitutional law as well as of the incomparable private law which had grown like a living thing, and which they preserved, so to speak, in alcohol, in the wise conviction that it could not be made more perfect but at most might degenerate. These advisers of the crown were mostly natives of Asia Mirror, Greeks and Semites, that is to say, the recognised masters in the handling of abstractions and in juristic subtleties. And now there came an episode of the Roman constitution in which, if nothing absolutely new was invented, there were many new interpretations, which were sublimated to principles, and then crystallised into rigid dogmas. The process is very analogous to that described in the passage dealing with Hellenic art and philosophy. The Roman republic had been a living organism, in which the people was constantly and industriously introducing improvements; the formal question of leading "principles" had never arisen, the present had never wished to hold the future in bondage. That went so far that the highest officials of the law-court, the praetors, nominated for a year, each issued on his entry into office a so-called "praetorian edict," in which he published the principles which he intended to follow in his administration of the law; and thus it became possible to adapt the existing code to changing times and conditions. Similarly everything in this State was elastic, everything remained in touch with the needs of life. But exactly as the poetical inspirations of the Greek philosophers and their mystical interpretations of the Inscrutable had been transformed in Helleno-Semitic Alexandria to dogmas of faith, so here State and law were changed to dogmas, and pretty much by the same people. We have inherited these dogmas, and it is important that we should know whence they come and how they arose. For example, our idea of the monarch is derived neither from the Teutonic nations, nor from the Oriental despots, but from the learned Jurists who were in the service of the Illyrian shepherd Diodetian, of the Illyrian cowboy Galerius and of the Illyrian swineherd Maximinus, and is a direct parody -- if the truth must be told -- of the greatest State-ideas of Rome. "The State-idea among the Romans," writes Mommsen, "rests upon the ideal transmission of the individual's capacity for action to the whole body of citizens, the populus, and upon the submission on the part of each physical member of the community of his individual will to this universal will. The repression of individual independence in favour of the collective will is the criterion of a constitutional community." [26] To picture to oneself what is implied by this "transmission," this "repression of individual independence," one must recall to memory the uncontrollable, individual love of freedom characteristic of each Roman. Of the oldest legal monument of the Romans, the famous twelve bronze tables (450 B.C.), Esmarch says, "The most pregnant expressions in these tables are the guarantees of the autocracy of the private rights of Roman citizens," [27] and when three hundred and fifty years later the first detailed system of law was compiled and written down, all the storms of the intervening period had caused no difference in this one point. [28] As a free self-governing man the Roman accordingly transmits to the collective will, whose spontaneous member he is, as much of his freedom as is necessary for the defence of that freedom. "The collective will is now in itself, if one is permitted to apply to it an expression of Roman private law, a fiction of constitutional law. Representation is in fact required for it. The action of will of the one man who represents it in the special case is equivalent constitutionally to the action of the collective will. The constitutional act of will in Rome is always the act of one man, since will and action in themselves are inseparable; collective action by majority of votes is from the Roman point of view a contradictio in adjecto." In every clause of this Roman constitutional law one sees a nation of strong, free men: the representation of the common cause, that is, of the State, is entrusted for a definite time to individual men (consuls, praetors, censors); they have absolutely plenary power and bear full responsibility. In case of need this conferring of absolute power goes so far that the citizens nominate a dictator, all in the interest of the common weal and in order that the freedom of each individual may remain unimpaired. -- Now the later emperors, or rather their advisers, did not, as one might have expected, overthrow this constitutional idea; no, they made it the legal foundation for monarchical autocracy, a thing unprecedented in history. Elsewhere despots had ruled as the sons of gods, as for instance in Egypt and even at the present day in Japan -- others, in former times and to-day, as representatives of God (I need only mention the Jewish kings and the Khalifs) -- others again by the so-called jus gladii, the right of the sword. But the soldiers who had usurped what had once been the Roman Empire founded their claims to rule as absolute autocrats upon Roman constitutional law! They had not in their opinion usurped the power like a Greek tyrant and overthrown the constitutional order; on the contrary, the all-powerful monarch was the flower, the perfection of the whole legal development of Rome: this the Oriental jurists had by their subtlety contrived to establish. With the help of the transmission theory just explained, the trick had been accomplished -- in the main as follows. One of the main pillars of Roman constitutional law is that no enactment has the force of law, if it is not approved by the people. Under the first emperors appearances were still maintained in this respect. But after Caracalla "Rome" had come to mean the whole civilised world. And now all rights of the people were" transmitted" to the Senate to simplify the issuing of new laws, &c. In the Corpus juris it stands thus: "As the Roman people has grown to such an extent that it would be difficult to call it together to one spot for the purpose of approving laws, it was held to be right to consult the Senate instead of the people." As we now speak of a Viceroy, so the Senate was called henceforth vice populi. The approval of the Senate too had become purely a matter of form -- once in possession of so beautiful an abstract principle, Here was no stopping half-way; and so the text continues: "but that also which it pleases the Prince to decree has the power of law, for the people has transmitted to him its whole plenitude of power and all its rights." [29] We have here accordingly the strictly legal derivation of an absolute monarchy and that too in the way in which it certainly could be developed from the Roman constitution alone -- with its rejection of the principle of majority and with its system of transmitting supreme power to individual men. [30] And this Roman "principate," as it is called, for the title of King was borne by no Caesar, forms to the present day the basis of all European kingships. By the introduction of constitutionalism, but still more by tlie manipulation of the law there is at present in many countries a movement back to the free standpoint of the ancient Romans; but everywhere "monarchical rule" is still in principle what the legal authorities of the fallen Roman State had made it. an institution which stands in direct contradiction to the true spirit of genuine Rome. The army is not even at the present day the army of the people, defending the home of that people, it is everywhere (even in England) called the army of the king; the officials are not appointed and invested with authority by the collective will, they are servants of the king. That is all Roman, but, as has been said, Roman of the cowboy, shepherd and swineherd age. I unfortunately cannot go into greater detail here, but must refer my readers to the classical works of Savigny, Geschichte des romischen Rechtes im Mittelalter, and Sybel, Entstehung des deutschen Konigtums, as also to Schulte, Deutsche Reichs- und Rechtsgeschichte. Among us the absolute monarchy has everywhere arisen through contact with the Roman Empire. Formerly the Teutonic Kings had everywhere limited rights; the touchstone of high treason was either not recognised as a crime or punished simply by a "wergild" (Sybel, 2nd ed., p. 352); the nomination of counts as officials of the king does not occur till the conquest of Roman lands, in fact there is a long period in which the Teutonic kings have greater authority over their Roman subjects than over their free Franks (Savigny, 1., chap. iv. div. 3). -- Above all the idea of a subject, the Roman subjectus, is a legacy which still clings fast to us, and which should let us see very clearly what to this day connects us with the Roman Empire at the time of its fall, and how much still separates us from the genuine heroic people of Rome. In all this I have no wish to moralise in the interests of any tendency. The old Roman forms of government would not have been applicable to new conditions and new men; indeed they no longer sufficed even for Rome itself when once it had extended its boundaries. Add to this that Christianity had arisen, making the suppression of slavery an obvious command. All that made a strong kingdom a necessity. But for the kings, slavery would never have been abolished in Europe, the nobles would never have set their slaves free, they would rather have made free-born men their bondmen. The strengthening of the kingly office has everywhere for a thousand years been the first condition of the strengthening of an ordered state of society and civic freedom, and even to-day there is probably no country in Europe where an absolutely free plebiscite would proclaim as the will of the people any other form of government than the monarchical. Public consciousness, too, is penetrating through the deceptive veils which sophists and pettifoggers have hung round it, and is recognising the genuine legal meaning of the King, namely, the old Roman view of the first official of State, glorified by that sacred element which finds a not unsuitable mystical expression in the words, "by the Grace of God." Many things which we have noticed around us in the nineteenth century justify us in believing that without a kingship and without a special grace of God we could not, even to- day, rule ourselves. For that possibly not only the virtues but also the faults of the Romans, and above all their excessive intellectual sobriety, were necessary. However that may be, we see that the legacy of political and constitutional law which Rome has given us forms a complicated and confused mass, and that principally for two reasons: first of all, because Rome, instead of flourishing like Athens for a short time and then disappearing altogether, lived on for 2500 years, first as a world-ruling State, later as a mighty State-idea, whereby what had been a single impulse broke up into a whole series, which frequently neutralised each other; in the second place, because the work of an incomparably energetic, Indo-European race was revised and manipulated by the subtlest minds of the West-Asiatic mixed races, this again leading to the obliteration of unity of character. I hope that these brief allusions with regard to the extraordinarily complicated conditions of universal history have sufficed to guide the reader. For clear thinking and lucid conception it is above all indispensable to separate rightly and to connect rightly. This has been my endeavour, and to this I must needs confine myself. JURISPRUDENCE AS A TECHNICAL ART Besides this legacy which we have more or less unconsciously carried along with us, we Europeans possess an inheritance from Rome that has become more than any other inheritance from antiquity an essential element in our life and science, viz., Roman law. By that we have to understand public law (jus publicum) and private law (jus privatum). [31] To write about this is an easy task, inasmuch as this law is available to us in a very late codification, that of the Emperor Justinian, dating from the middle of the sixth century A.D. Besides, the efforts of jurists and historians have succeeded in tracing far back the growth of this law, and in recent years they have even been able on the one hand to demonstrate the connection of its origins with old Aryan law, and on the other to follow its fate in the various countries of Europe through centuries of vague ferment up to the present day. Here we have accordingly definite and clearly sifted material, and a legal expert can easily prove how much Roman law is contained in the law-books of our States to-day; it must also be easy for him to prove that the thorough knowledge of Roman law will for indefinite ages remain the canon of all strictly juridical thought. Here too in the Roman legacy we have to distinguish between two things: actual legal tenets, which have stood for centuries and to some extent are still valid, and besides this a treasure of ideas and methods. The legal expert can explain all this easily, but only when he is speaking to those who know law. Now I am no authority on law (though I have industriously and lovingly studied its fundamental principles and the general course of its history), nor am I entitled to suppose that my readers are informed on the subject; my task is therefore different and quite clearly defined by the purpose of this book. It is only from a summary and universally human standpoint that I can venture briefly to indicate in what sense Roman law was in the history of the Indo-European nations a factor of such unparalleled significance that it has remained a part of our culture to the present day. Why is it utterly impossible to speak of jurisprudence except to an audience equipped with a large store of technical juristical knowledge? This preliminary question will lead us at once to the heart of our subject, and will point the way to a perhaps not detailed, but at any rate accurate, analysis of what the Romans have accomplished in this department. Law is a technical subject: that is the whole answer. Like medicine, it is neither pure science nor pure art; and while every science in its results and every art by the impression which it makes can be communicated to all and so is in its essentialities common property, a technical subject remains accessible only to the expert. Cicero indeed compares jurisprudence with astronomy and geometry and expresses the opinion that "all these studies are in pursuit of the truth," [32] but this is a perfect example of a logically false comparison. For astronomy and geometry investigate actual, fixed, unchangeable conditions, some outside of, others inside the mind, [33] whereas legal decisions are derived first of all from the observation of variable, contradictory and ever undefinable tendencies, habits, customs and opinions, and jurisprudence as a discipline must according to the nature of things confine itself to the subject before it, formulating it more definitely, expressing it more exactly, making it more intelligible by comparison, and -- above all -- classifying it accurately by the finest analysis and adapting it to practical needs. Law is, like the State, a human, artificial creation, a new systematic arrangement of the conditions arising out of the nature of man and his social instincts. The progress of jurisprudence does not imply by any means an increase of knowledge (which must surely be the object of science), but merely a perfecting of the technical art; that is, however, a great deal and may presuppose high gifts. An abundant material is thus consistently and with increasing skill employed by the human will in working out the life-purpose of man. I shall introduce a comparison to make this clearer. How conditional and, consequently, how little to the purpose would be the statement that the God who formed iron also caused the smithy to be built! In a certain sense the remark would be undeniably correct: without definite tendencies which impelled him to search further and further, without definite capacities for invention and manipulation, man would never have attained to the working of iron; he did live long on the earth before he reached that stage. By acuteness and patience he at last succeeded: he learnt how to make the hard metal pliant and serviceable to himself. But here we have clearly not to deal with the discovery of any eternal truth, as in the case of astronomy and every genuine science, but on the one hand with patience and skill, on the other hand with suitability to practical purposes; in short, working iron is no science but, in the true sense of the Greek word, a technique, i.e., a matter of skill. And the conditions of this technique, since they depend on the human will (showing their relationship with art), vary with the times, with the tendencies and the habits of races, just as on the other hand they are influenced by the progress of knowledge (showing their relationship with science). In the nineteenth century, for example, the working of iron has passed through great changes which would have been inconceivable but for the progress of chemistry, physics, mechanics and mathematics; a practical art may thus demand manifold scientific knowledge from those who pursue it -- but it does not for all that cease to be a practical art. And because it is a practical art, it can be learned by anyone, however poor his mental endowments, provided only he has some skill, whereas on the other hand it is a dead letter even for the more gifted of men if he has not made himself familiar with its methods For while science and art contain something which is of interest to every intelligent person, an applied art is merely a method, a procedure, a manipulation, something artificial and not artistic, an application of knowledge, not really knowledge itself, a power, yet not a creative power, and so only that which is produced by it, i.e., the finished object, in which there is nothing technical left, can claim universal interest. It is exactly the same with jurisprudence, with this one difference, that the material here to be worked up is purely intellectual. In principle jurisprudence is and remains an applied art, and many an almost ineradicable misunderstanding would have been avoided if the legal authorities had not lost sight of this simple fundamental truth. From Cicero to the present day [34] excellent jurists have only too often looked upon it as their duty to claim for their branch of study the designation "science," cost what it might; they seem to fear that they will be degraded if their claims are held to be absurd. Naturally people will continue to speak of a " science of law"; but only in the derived sense; the mass of the material on law, history of law, &c., is so gigantic that it, so to speak, forms a little world for itself, in which research is made and this research is called science (Wissenschaft). But this is obviously an improper use of the word. The root "vid" denotes in Sanscrit to find; if language is not to pale into colourless ambiguity, we must see to it that a knowing (Wissen) always denotes a finding. Now a finding presupposes two things: in the first place, an object which is and exists before we find it; and secondly, the fact that this object has not yet been found and discovered; neither of the two things can be said of jurisprudence; for "law" does not exist till men make it, nor does it exist as a subject outside of our consciousness; besides, the science of law does not reveal or find anything but itself. And so those ancient authorities were perfectly right who, instead of speaking of juris scientia, preferred to say juris notitia, juris peritia, juris prudentia, that is, practically, knowledge, skill, experience in the manipulation of law. This difference is of far-reaching importance. For it is only when we have recognised what law essentially is, that we can follow its history intelligently and comprehend the decisive importance of Rome in the development of this applied art. Now and now only can we not merely cut but untie that Gordian knot, the question of natural law. This great question, which has been the subject of dispute for centuries, arises solely and simply from a misunderstanding of the nature of law; whether we answer it by yes or no does not help us out of the maze. Cicero, in the confused manner peculiar to him, has used all sorts of oratorical flourishes on this subject; at one time he writes: in order to explain law, one must investigate the nature of man -- there he seemed to be on the right track; immediately after he says that law is a "sublime reason" which exists outside of us and is "implanted in us"; then again we hear that law" arises out of the nature of things"; finally, that it was "born simultaneously with God, older than mankind." [35] I do not know why these quibbling platitudes are quoted everywhere; I do so merely lest I should be reproached with having heedlessly passed by so famous a fount of wisdom; however, I would draw the reader's attention to Mommsen's verdict: "Cicero was a journalist in the worst sense of the term, over-rich in words, as he himself confesses, and beyond all imagination poor in thoughts." [36] It was worse when their Asiatic love of dogmatism and stickling for principle induced the really important legal teachers of the so-called "classical jurisprudence" to formulate clearly the quite un-Roman idea of a natural law and to introduce it systematically. Ulpian calls natural law that "which is common to animals and men." A monstrous thought! Not merely in art is man a free creator, in law too he proves himself a magnificent inventor, an imcomparably skilled, thoughtful workman, the forger of his own fate. Roman law is as characteristic a creation of the one individual human spirit as Hellenic art. What would be said of me if I were to speak of a "natural art" and then tried to draw an analogy, however far-fetched, between the spontaneous chirping of a bird and a tragedy of Sophocles? Because the jurists form a technical guild, many of them have for centuries talked nonsense like this without the world noticing it. Gaius, another classical authority whom the Jews claim as their countryman and who, history tells us, was "not deep but very popular," gives a less extravagant but equally invalid definition of natural law: he identifies it with the so-called jus gentium, that is, with the "common law" which grew out of the legal codes of the various races of the Roman provinces; in ambiguous words he explains that this law was common to "all nations of the earth": a fearful assertion, since the jus gentium is just as much the work of Rome as its own jus civile and represents only the result of the systematising activity of Roman jurisprudence amidst the confusion of contradictory and antagonistic codes. [37] The very existence of the jus gentium beside and in contrast to the Roman jus civile, as well as the confused history of the origin of this "Law of nations," should have made clear to the dullest eye that there is not one law but many; also that law is not an entity, which can be scientifically investigated, but a product of human skill, which can be viewed and carried out in very different ways. But the ghost of natural law still merrily haunts certain brains; for example, legal theorists, as far apart as Hobbes and Rousseau, agree in this one idea; but the greatest achievement was the famous Hugo Grotius' division in natural, historical. and divine law, which makes one ask whether then the divine law was unnatural? or the natural a work of the devil? It needed the brilliant intellect and the outspoken Impertinence of a Voltaire to venture to write: "Rien ne contribue peut-etre plus a rendre un esprit faux, obscur, confus, incertain, que la lecture de Grotius et de Pufen dorf." [38] In the nineteenth century, however, this pale abstraction has been sharply attacked; the historians of law, and with them the brilliant theorist Jhering, have dealt the finishing blow. For this all that was really necessary was to understand that law is an applied art. Considered from this point of view it is easy to comprehend that in reality the idea "natural law" (jus naturae) contains a flagrant contradictio in adjecto. As soon as a legal agreement is come to among men -- it does not at all need to be written, a convention silent or by word of mouth is in principle the same thing as a bulky civil code of law -- for the state of nature has ceased; but if the pure natural impulse still prevails, eo ipso there is no law. For even if men in a natural state were to live together in association, no matter how mild and humane they might be towards one another, there would be no law, no jus; there would be just as little law as if the brutal power of the fist were the decisive factor with them. Law is a regulation of the relations of an individual to others, artificially arranged and enforced upon him by the community. It is an employment of these instincts which impel man to live together in societies, and, at the same time, of that necessity which forces him nolens volens to unite with his like: love and fear, friendship and enmity. If we read in the dogmatic metaphysicians, "Law is the abstract expression of the general will, existing of its own accord and for its own benefit," [39] we feel that we are getting air instead of bread to eat; when the great Kant says, "Law is the essence of the conditions under which the arbitrary will of the one can be harmonised with that of the other according to a universal law of freedom," [40] we must at once see that this is the definition of an ideal, the definition of a possible or at least thinkable state of law, but not an all-embracing definition of law ill general, as it presents itself to us; besides, it contains a dangerous error. It is indeed a fallacy to suppose arbitrary will in the soul of the individual and then to construe law into a reaction against it; rather every individual manifestly acts according to the necessity of his nature, and the element of arbitrariness only comes in with the measures whereby this natural action is restricted; it is not the natural man that is arbitrary, it is the man of law. If we wished to attempt a definition with Kant's ideas as basis, we should have to say: Law is the essence of the arbitrary conditions, which are introduced into a human society, in order that the necessary action of one man may be counterbalanced by the necessary action of another and so harmonised as to give as large an amount of freedom as possible. The simplest formulation of the idea would be as follows: Arbitrariness in place of instinct in the relations of men to men is law. And by wav of explanation it would have to be added that the non plus ultra of arbitrariness consists in declaring an arbitrarily established form (for punishment, buying, marriage, testaments, &c.,) to be henceforth and for ever unchangeable, so that all actions thereby covered are invalid and have no legal support, whenever the prescribed form is not observed. Law is accordingly the lasting rule of definite arbitrary relations between men. Moreover, it is unnecessary to enter into speculations with regard to quite unknown prehistoric times, in order to see jus in simple forms, where this central element of arbitrariness clearly appears; we need only to look at the inhabitants of the Congo State to- day. Every little tribe has its chief; he alone decides matters of law and his decision is irrevocable. The legal disputes which occupy him are under such simple conditions of a very simple nature; they have to deal mostly with crimes against life and property; the penalty is death, seldom slavery; if the chief by motion of hand has given his decision against the accused, the latter is hacked into a hundred pieces by the bystanders and then eaten. The ideas of law therefore are very elementary on the Congo; and yet the idea of law is there; the natural man, that is, the man acting instinctively, would himself kill the supposed murderer or thief; here he does not do that, the criminal is dragged to the place of assembly and judged. Similarly the chief decides disputes of inheritance and the regulation of boundaries. The unlimited arbitrary power of the chief is accordingly the "law" of the land, it is the cement by which society is held together, instead of falling to pieces in a lawless condition of nature. [41] The progress of law lies in the practical development and the ethical clarification of this arbitrary element. [42] I think we have now sufficient material to enable us without technical discussions, and at the same time without phrase-making, to understand the special merits of the Roman people in regard to law, or at least the special character of those merits. The nature of our legacy will at the same time be exactly characterised. If law is not an inborn principle nor an exact science capable of investigation, but a useful adaptation of human capabilities to the building up of a society fitted for civilisation, then it is clear from the first that there will be and must be codes of law varying very much in value. Fundamentally a law will be influenced principally by two forces from which it will receive its characteristic colouring: first, by the moral character of the people in whose midst it comes into force, and, secondly, by the analytical acuteness of that people. By the happy union of both -- a union occurring only once in the history of the world -- the Roman people found themselves in a position to build up a legal code of great perfection. [43] Mere egoism, the greed of possession, will never suffice to found a lasting code of law; we have rather learned from the Romans that the inviolable respect for the claims of others to freedom and possession is the moral foundation upon which alone we can build for all time. One of the most important authorities on the Roman law and people, Karl Esmarch, writes: "The conscience of the Italian Aryans in regard to right and wrong is strong and unadulterated; in self-control and, when necessary, self-sacrifice, that virtue of theirs which springs from inner impulse and is supported by a most profound inner nature reaches its culmination." Because he knew how to rule himself the Roman was qualified to rule the world and to develop a strong idea of the State; by the fact that he could sacrifice his own interests to the universal weal, he proved his capacity to establish valid principles in regard to the rights of private property and of individual freedom. But these high moral qualities had to be supported by exceptional intellectual qualities. The Romans, quite insignificant in philosophy, were the greatest masters in the abstraction of firm principles from the experiences of life-a mastery which becomes specially remarkable when we compare other nations with them, as, for example, the Athenians, who, though marvellously gifted, and delighting in legal quarrels and sophistical law riddles, never were anything but blunderers in this branch of thought. [44] This peculiar capacity, to elevate definite practical relations to clearly defined principles implies a great intellectual achievement; for the first time order and lucidity of arrangement were brought into social conditions, just as language, by the formation of abstract collective words, had made higher systematic thinking possible. It is no longer a question of vague instincts nor of obscure and changing conceptions of justice and injustice; all relations stand definitely grouped before our eyes, and these relations are to be regulated by the invention of new legal rules or the further development of those already existing. And since life gradually widens experience, or itself assumes more complicated forms, the Roman acuteness little by little inside the individual It groups" discovers the "species." "In point of fine,. carefully pondered ideas of right, Roman law is and will remain the permanent teacher of the civilised world," says Professor Leist, the very man who has done more than any other to prove that the Universities should give up the present one-sided Roman standpoint of history of law and should teach students to recognise Roman law as a link in the chain, as one of the steps "which the Aryan mind has mounted in the clearing up of legal conceptions." The more carefully we study the numerous attempts at legislation previous to and contemporary with the Roman, the more we recognise what incomparable services were rendered by Roman law and realise that it did not fall from heaven but was the creation of the intellects of grand and sturdy men. One thing must not be overlooked: in addition to the qualities of self-control, of abstraction, and the finest analysis, the Roman possessed a special gift of plastic shaping. Here appears their relationship to Hellenism, which we seek in vain elsewhere. The Roman too is an artist of mighty creative power -- an artist in the clear, plastic shaping of the complicated machine of State. No theorist in the world could have thought out such an organism of State, which perhaps should rather be pointed to as a work of art than as a work of reason. He is still more an artist in the plastic working out of his conceptions of law. Highly characteristic too is the manner in which the Roman strives to give visible expression to his artistically moulded conceptions even in legal actions, everywhere "to give an outward expression to the inner diversity, to bring what is inward, so to speak, to the surface." [45] Here we have a decidedly artistic instinct, the outcome of specifically Indo-European tendencies. In this artistic element too lies the magic power of the Roman legacy; that is the indestructible and ever incomparable part of it. On one point indeed we must be quite clear; -- Roman law is just as incomparable and inimitable as Hellenic art. Our ridiculous Germanomania will make no change in that. People tell marvels about a "German law," supposed to have been stolen from us by the introduction of the Roman; but there never was a German law, but merely a chaos of rude contradictory laws, a special one for each tribe. It is also absolutely inaccurate to speak of "adopting" Roman law between the thirteenth and the sixteenth centuries; for the Teutonic peoples have "adopted" continuously from the time when they first came into contact with the Roman Empire. Burgundians and East Goths as early as the fifth century of the Christian era (or at the very beginning of the sixth) introduced modified (corrupted) forms of Roman law, [46] and the oldest sources of Saxon, Frankish, Bavarian and Alemannic law, &c., are so interlarded with Latin words and half-understood principles, that the need of it reasoned codification of law is only too apparent. One might well relegate German law as an ideal to the future, but to seek it in the past is hypocritical twaddle. [47] Another hindrance to the proper estimation of Roman law is due to the frenzy produced by the dogma of evolution, which has led to such confusion of thought in the nineteenth century. The feeling for the Individual, the established view that the Individual alone has everlasting importance, has been seriously injured by it. Although the only effective powers that history reveals are absolutely individualised nations and great personalities that never recur, the theory of evolution leads to the idea that capacities and beginnings were everywhere identical and that essentially analogous structures must "develop" from these same germs. The fact that this never happens and that Roman law, for example, came into being once for all, does not disturb our dogmatists in the least. With this is con nected the further conception of unceasing progress towards "perfection," in consequence of which our law must as a matter of course surpass the Roman, because it is later, and yet nature never offers an example of development taking place in anything living without entailing a corresponding loss. [48] Our civilisation stands high above the Roman; in respect of the vividness of our legal sense, on the other hand, an educated man of the nineteenth century can certainly not come up to a Roman peasant of the year 500 B.C. No one who has any thinking power and knowledge will dispute that. I said in relation to law, not to justice. When Leist writes, "The unprejudiced inquirer will not find that the present age as compared with the Roman has made such glorious advance in the practice or even in the knowledge of real justice," [49] he makes a remark well worth taking to heart; but I quote these words to make it clear that I do not here speak of justice, but of law, and to ensure that the difference between the two may be obvious. Our noble conception of the duties of humanity points, I am sure, to more enlightened ideas with regard to justice; the legal sense is, however, quite a different thing and is neither proved nor promoted even by the possession of the most perfect and yet imported systems of law. To understand how incomparable was the achievement of the Romans, one circumstance must certainly not be overlooked: the Justinian corpus juris with which we are familiar is only the embalmed corpse of Roman law. [50] For centuries skilled legal authorities kept in it a semblance of life by galvanic means; now all civilised nations have worked out a law of their own; but this would not have been possible without the Roman, we all lack the necessary talent. A single observation will suffice to show the cleft between the Romans and ourselves: Roman law of the real heroic period was firm as a rock but nevertheless incredibly elastic -- incredibly," I mean, to our modern, timid conceptions, for we have taken everything from that law, except its living character. The Roman law was always" in a state of growth," and capable, thanks to certain brilliant contrivances, of adapting itself to the changing needs of the times. The law, which in the fifth century B.C. was in its general outlines engraved in bronze tables by the decemvirs nominated for that purpose, was not a new and improvised code, nor one which from that time forth was immutable, but was more or less a codification of already existing laws which had grown up historically; the Romans knew how to invent ways and means to keep it even then from crystallising. In dealing with the Twelve Tables, for example, the officials did good service by their acumen in "interpreting" -- not with the object of twisting the statutes to suit some special purpose, but of adapting them half-automatically to wider conditions; brilliant inventions-as, for example, that of the legal" fiction," by which means were found (if I may express myself as a layman) of putting to use existing legal norms to forestall others that were not yet existent -- and constitutional arrangements, like those of the Praetors, by which a place was assured to that law of custom which is so necessary in a living organism, till the best law has been provided by practice, arrangements by means of which the jus gentium also gradually developed in close touch with the narrower Roman jus civile -- all these things brought about a fresh pulsating life in law -- a life which no one can appreciate unless he has studied law, inasmuch as we have nothing of the kind, absolutely nothing. [51] Moreover, in order to estimate the gulf between us and the Romans, we must remember that real scholarly and trained jurists did not come into existence till the end of the republic, and that this splendid, and in most parts most delicately chiselled product of legal applied art is the work of peasants and rude warriors. The reader should try to make clear to an average philistine of the present day the juristical difference between property and possession, to bring home to him that a thief is the legal possessor of the stolen object, and as such enjoys legal protection for his possession, as does also the pawnbroker and the hereditary landlord; he will not succeed, I know it from experience; I purposely choose this as a simple example. The Roman peasant, on the other hand, who could neither read nor write, knew all this quite accurately five hundred years before Christ. [52] He certainly did not know much more, but his law he knew and employed with as exact knowledge as he did his plough or his oxen; and by knowing it and thinking about it, [53] by striving to obtain for himself, his possessions, and his relatives an ever firmer and more definite legal protection, he built up that legal structure, under which at a later time other races found shelter in stormy days, and which we at the present day with more or less success, with more or less changes, seek to extend, finish and perfect. No people but the Romans could of themselves have created and built it up, for nowhere else was there present the necessary conjunction of qualities of character and of intellect, and this law had to be lived before it was thought, before the arrival of those worthies who could tell us so much that was edifying in regard to a "natural law," and thought it comparable to the geometry which the scholar puzzles out in his lonely room. In later times Hellenes and Semites have rendered great services as dogmatists and advocates, Italians as teachers of law, Frenchmen as systematisers, Germans as historians; in none of the races mentioned, however, could one have found the soil that could bring that tree to maturity. In the case of the Semites, for instance, the moral subsoil was wanting, in the case of the Germans acumen. The Semites have great moral qualities, but not those tram which a law for civilised nations could have been developed. For the disregard of the legal claims and the freedom of others is a feature that ever reappears in all races strongly imbued with Semitic blood. Already in ancient Babylon they had a finely worked out law of commerce and obligations; but even in this limited branch nothing was done to suppress the frightful exaction of usury, and as for safeguarding personal rights, that of freedom, for instance, no one ever even thought of it. [54] But even under more favourable circumstances, for instance, among the Jews, there is not even the beginning of a genuine formation of law; strange as that may appear, a single glance at the legal clauses of the greatest Jewish thinker, Spinoza, solves the riddle. In his Political Tractate (ii. 4 and 8) we read, "The right of each one is in proportion to his power." Here we might of course imagine that it was merely a question of establishing actual relations, for this second chapter bears the title "On Natural Law." [55] However, in his Ethics (Part IV., Supplement, 8) we find in black and white: "According to the highest law of nature every man has unlimited power to do that which in his opinion will be in his interest ": and in the treatise On True Freedom we find the words: "To obtain that which we demand for our salvation and our peace, we need no other principle than this, to lay to heart what is for our own interests." [56] That it does not disconcert so honest a man to build up a pure theory of morals upon such foundations is the finest testimony to his inborn casuistical gifts; but it proves that Roman law could never have grown on Jewish soil. No, there would have been at the most a simplified code, such as King Tippu Tib, for instance, may use on the Congo. [57] It was only on the foundation of a law invented and worked out in detail by Indo- Europeans that the Jew could display his astonishing juristical abilities. -- The drawbacks in the case of the German lie in quite a different direction. Self-sacrifice, the impulse "to build from within outwards," the emphasising of the ethical moment, the unswerving love of freedom, in short, all the requisite moral qualities they would have possessed in abundance; -- not the intellectual ones. Acumen was never a national possession of the Teutons; that is so manifest that it requires no proof. Schopenhauer asserts that "the real national characteristic of the German is dul1wittedness (Schwerfalligkeit)." Moreover, the peculiar gifts of the Germans are a hindrance in the formation of law -- his incomparable fancy (in contrast to the flat empiricism of the Roman imagination), the creative passion of his mind (in contrast to the cool sobriety of the Roman), his scientific depth (in contrast to the practical political tendencies of the born legal race), his lively sense of fairness (in social relations always a weak reed in comparison with the strictly legal attitude of the Roman). No, this people could never have brought the applied art of law to high perfection; it resembles too closely the Indo-Aryans, whose "complete lack of the juristical power of distinguishing" is demonstrated by Jhering in his Vorgeschichte der Indoeuropaer, § 15. I should like to introduce another national comparison with regard to the formation of law, that between the Hellenes and the Romans. It reveals the essence of Roman law, the one point to which I may call special attention in this book. At the same time it will make us feel how deeply our civilisation is indebted to the Roman legacy. My discussion will be brief, and though it deals with the simple beginnings of the remote past, it will also introduce us to the burning questions of the immediate present. Every educated person knows that the Greeks were not only great politicians but at the same time great theorists in law. The" lawsuit about the shadow of the ass" [58] is an ancient Attic witticism, which satirises excellently the love of this thoughtless, litigious people for actions at law. I recall too the Wasps of Aristophanes with the heartrending prayers of Philocleon when shut in by his son: "Let me out, let me out -- to judge!" But we should look further around. Homer has a court scene represented on the shield of Achilles (Iliad, xviii. 497 ff.), Plato's largest works are on politics and the theory of law (the Republic and the Laws), Aristotle's Rhetoric is in parts simply a handbook for advocates beginning their profession; notice, for example, how in chap. xv. of the first book he expounds a detailed theory of deceptive sophistry for hedge-lawyers, gives them hints how to twist the law to the advantage of their clients, and advises them to let their clients swear false oaths in court, whenever it is to their advantage. [59] ... We see that, except in Sparta (where according to Plutarch's assurance there were absolutely no cases), the Hellenic atmosphere was charged with questions of law. The Romans, always ready to recognise the merits of others, had, from time immemorial, recourse to the Greeks, particularly to the Athenians, for advice in the development of their law. Even when they were about to fix their fundamental legal principles (in the Twelve Tables) for the first time, they sent a commission to Greece, and in the final editing of this earliest monument, an Ephesian, Hermodorus, who was banished from his native city, is said to have been of considerable service. Time made no change in this. The great authorities on law, a Mucius Scaevola, a Servius Sulpicius, have a thorough knowledge of Hellenic legal enactments; Cicero, and all that this name stands for, derives his obscure remarks on divine justice, natural law, &c., from Greek philosophers: in the pseudo-Platonic Minos he might have read that law is the discovery of an objective thing, not a human invention, and from Aristotle he quotes the words, "The universal law, because it is the natural law, never changes, but the written law, on the other hand, often does." [60] In the later period of the imperial decay, when the Roman people had disappeared from the face of the earth, the so-called "classical jurisprudence" was founded and put into shape almost entirely by Greeks more or less of Semitic descent. There is a remarkable want of information with regard to the antecedents and history of the most famous teachers of law in the later Roman ages; all of a sudden they appear in office and dignity, no one knowing whence they have come. [61] But at the beginning of the Imperial rule with its inevitable influence upon the life of law the passionate struggle between Labeo, the irrepressible, free old plebeian, and Capito the upstart, who is striving for wealth and honour, is truly pathetic; it is the struggle for organic free development in opposition to the faith in authority and dogma. And dogma conquered in the legal sphere as in that of religion. -- But in the meantime, as we have said, the practical Romans had learned a great deal in Greece, especially from Solon, who had, as a builder of States, achieved little that lasted, but accomplished all the more in the sphere of law. Whether Solon was the originator of written legislation and the momentous principle of actiones (the division of suits according to definite principles), or whether he merely systematised and fixed them -- I know not: at any rate both are derived from Athens. [62] This I mention only as an instance of the great importance of Greece in the development of Roman law. Later, when all Hellenic countries were under Roman administration, the Greek cities contributed most to the formation of the jus gentium and in that way to the perfecting of Roman law. Here we may ask, how is it that the Hellenes, so superior intellectually to the Romans, created nothing in the branch of knowledge that was lasting or perfect, but shared in the great civilising work of the formation of law solely through the medium of the Romans? A single but fatal mistake was at the bottom of it: the Roman started from the family, on which basis he erected State and law; the Greek, on the other hand, took as his starting- point the State, his ideal being always the organisation of the "polis," while family and law remained subordinate. All Greek history and literature prove the correctness of this assertion, and the fact that the greatest Hellene of post-Homeric times, Plato, considered the complete abolition of the family in the upper classes a desirable aim, shows to what fatal confusions such a fundamental error must in time lead. With perfect right Giordano Bruno says (I forget where), "The very smallest mistake in the way in which a thing is attacked leads finally to the very greatest erroneous discrepancies; thus the most trifling mistake in the ramification of thought can grow as an acorn does into an oak." [63] And this was not" the very smallest mistake" but a very great one. Herein lies all the misery of the Hellenic peoples; here we have to seek the reason of their inability to develop either State or Law in a lasting and ideal manner. If we take up a careful individual account, for example Aristotle's book The Athenian Constitution, discovered a few years ago, this succession of constitutions, all different and all breathing an essentially different spirit, makes us giddy: the pre-Draconian, those of Draco, Solon, Cleisthenes, Aristeides, Pericles, the Four Hundred, &c. &c., all within two hundred and fifty years! Such a state of things would have been impossible where there existed a firmly knit family life. Without that it was easy for the Greeks to arrive at that characteristically unhistorical view of theirs, that law was a subject for free speculation; and so they lost all feeling for the fact that in order to live, law must grow out of actual conditions. [64] And how striking it is that even the most -- important questions of family law are regarded as subordinate, that Solon, for example, the most prominent Athenian as a lawyer, leaves the law of inheritance so obscure, that it is left to the caprice of the law-courts to interpret it (Aristotle, as above, division IX). -- With Rome it was different. The strong tendency to discipline here finds its first expression in the firm organisation of the family. The sons remain under the control of the father, not merely till their fourteenth year, as in Greece, but till the death of the father; by the exclusion of relationship on the mother's side, by the legal recognition of the unlimited power of the paterfamilias, even in regard to the life and death of his children, (although his son might have risen in the meantime to the highest offices in the State), by the greatest freedom and the most accurate individual enactments in reference to the law of wills and legacies, by the strictest protection of all the father's rights of property and legal claims (for he alone possessed a right to property and was a persona sui juris, i.e., a person with full rights at law) -- by these things and many more the family became in Rome an impregnably firm, indissoluble unity, and it is essentially to this that we are indebted for the particular form of the Roman State and Roman law. One can easily imagine how such a strict conception of the family must affect the whole life, the morals of the men, the character of the children, the anxiety to retain and to bequeath what had been acquired, the love of country, which did not need to be artificially nourished, as in Greece: for the citizen fought for what was assured to him for ever, he fought for his sacred home, for the future of his children, for peace and order. The intimate conception of marriage and the position of women in society are naturally connected with all this. Here we have evidently the positive element in the formation of the Roman family, that which could not be fixed by law but which on the contrary determined the forms of law. Among old Aryans marriage was already regarded as a "divine institution," and when the young wife crossed the threshold of her new home she was received with the cry, "Come into the house of thy husband, that thou mayest be called mistress; be therein as one who commands!"[65] In this very point, Greeks and Romans, otherwise so manifoldly related, differed from one another. In Homer's time we certainly see the woman highly respected by the Greeks, and the comrade of the man; but the Ionians who emigrated to Asia Minor took strange wives, "who did not venture to call the Greek husband by his name, but addressed him as master -- this degeneration of the Asiatic Ionians has reacted on Athens." [66] The Roman, on the other hand; regarded his wife as his companion and equal, his life's mate, one who shared everything, divine as well as human, with him. The wife has, however, this position in Rome not because she is wife, but because she is a woman, i.e., because of the respect which the Roman pays to the female sex as such. In all relations where the natural difference of sex does not make a distinction necessary, the Roman puts woman on an equality with himself. There is no more convincing proof of this than the old Roman law of inheritance, which makes absolutely no difference between the two sexes: the daughter receives exactly the same as the son, the kinswoman the same as the kinsman; if there are no children, the widow receives the whole inheritance and excludes the male line; the sister does the same when there is no widow. We must be acquainted with the slighting treatment to which the female sex is subjected in the laws of so many other nations to understand the significance of this point; in Greece, for instance, the nearer male relation excluded the wife altogether, and the lot of a daughter was indeed lamentable, the nearest male relation having the power to take her from her husband. [67] The Roman wife was honoured in her house as princess, princeps familiae, and the Roman law speaks of the matronarum sanctitas, the sacredness of wives who are blessed with children. Children who in any way sinned against their parents fell under the ban of gods and men; no penalty was enacted for the murder of a father, because, as Plutarch tells us, this crime was considered unthinkable -- in fact it was more than five hundred years before a case of parricide occurred. [68] To form a right conception of this old Roman family, we must keep one other fact in view: that in Roman life the sacred element, that is, the reverence for divine commands, played a great part. While the paterfamilias was, according to human law, an absolute despot in his house, the divine command forbade him to abuse this power. [69] The home was indeed a sanctuary, the hearth comparable to an altar; and while it is somewhat revolting to our feelings to-day to hear that parents in very great poverty sometimes sold their children as slaves, yet all histories of law give one the firm impression that any cruelty, according to ideas of that age, towards wife or children was almost or quite unknown. Indeed at law the wife is in relation to her husband filioe loco (equal to a daughter) in relation to her own children sororis loco (equal to a sister): but this is done in the interests of the unity of the family, and in order that, in constitutional as well as in private law relations, the family may appear as a sharply defined, autonomous, organic entity, represented at law by a single person, not as a more or less firm conglomerate of merely individual fragments. We have already seen in the political part of this chapter that the Roman loved to transmit power to single individuals, confident that from freedom united to responsibility, both focussed, so to speak, in a personality conscious of its individuality, moderate, and at the same time energetic and wise action would result. It is the same principle that prevails here. Later this family life degenerated; cunning means were invented to bring into usage substitutes for genuine marriage, in order that the wife should no longer come into the legal power of the husband; "marriage became a money matter like everything else; not in order to found families, but to improve shattered fortunes by means of dowries, were marriages contracted, and existing ones dissolved, in order to form new unions"; [70] but in spite of this Publius Syrus could in Caesar's time still express the Roman conception of marriage by the line:
The soul, not the body, makes marriage eternal. This is the central point of Roman law; the contrast with Greece (and with Germany) gives us an idea of the importance of such an organic central point. Here too the Roman proves himself far from unideal, though he is absolutely without sentiment and almost painfully devoid of phantasy. Indeed, his "idea" is so strong, that what he really in his heart desired never again altogether disappeared. We have already seen in the preceding section that ideas are immortal, and though the Roman State was destroyed, yet the idea of it lived on through the centuries, a still powerful influence; at the end of the nineteenth century four mighty monarchs of Europe still bear the title of Caesar, and the idea of res publica is still moulding the greatest State of the new world. But Roman law does not live on merely as a Justinian mummy or a technical secret, revealed only to members of the craft; no, I believe that the life-giving germ from which that law had fundamentally grown was never totally destroyed, but continues to live on among us as a most valuable possession, in spite of the darkness of disgracefully wicked centuries and the disintegrating ferment that followed them. We still talk of the sacredness of the family; anyone who, like certain Socialists, denies it is struck from the list of politicians capable of forming a judgment, and even those who are not pious Catholics will a hundred times rather become reconciled to the conception that marriage is a religious sacrament (as it indeed was in ancient Rome; the Pontificate in this as in so much else being directly, based on old Roman Pontifical law and proving itself the last official representative of Heathendom), than admit that marriage is, as the learned Anarchist leader Elisee Reclus elegantly says, "merely legal prostitution." That we feel thus is a Roman legacy. The high position of woman too, which makes our civilisation rank far above the Hellenic and the various degenerate Semitic and Asiatic types, is not, as Schopenhauer and so many others have taught, a "Christian-Teutonic," but a Roman creation. As far as one can judge, the old Teutons cannot have treated their women particularly well; here Roman influence appears to have first brought about a change; the oldest German lawbooks are, in reference to the legal position of the wife, full of phrases taken literally from Roman law (see Grimm: Deutsche Rechtsaltertumer, II. chap. i., B. 7 and ff.). It was the work of the Romans to give woman a firm, secure, legal position in Europe. The "fair sex" was indeed first glorified in song by Germans, Italians. French, English and Spaniards; the Roman people had not thought of that. [71] But I ask, whether without the keen penetration and sense of justice, above all without the incomparable State-building instinct of the Romans, we should ever have advanced so far as to take woman into our political system as our life's comrade and the cornerstone of the family? I think I may answer a decided no. Christianity in no wise signifies a strengthening of the idea of the family. On the contrary, its real essence is to destroy all political and legal bonds and make every single individual rely upon himself. And it was from the Christian Emperor Constantine, who annulled the sovereignty of the paterfamilias, that the Roman family in fact received its death-blow. Christianity, moreover, being derived from Judaism, is from the first an anarchic, anti-political power. That the Catholic Church followed a different road and became a political power of the greatest magnitude, is to be attributed simply to the fact that it denied the clear teaching of Christ and adopted instead the Roman State-idea -- though it was only the idea of the degenerate Roman State. The Church did more than any other power for the maintenance of Roman law; [72] Pope Gregory IX., for instance, aspired solely to the title of a " Justinian of the Church"; this recognition of his juristical services lay nearer his heart than sanctification. [73] Though the motives that impelled the Church and the Kings to retain and forcibly introduce Roman law in its degenerate Byzantine form were not particularly noble ones, yet that could not prevent many very noble Roman thoughts from being saved at the same time. And just as the tradition of Roman law never died, so, too, the Roman conception of the dignity of woman and of the political importance of the family never quite disappeared from the consciousness of men. For several centuries (here as in so many things the thirteenth century is with Petrus Lombardus the almost exact border-line) we have come nearer and nearer to the old Roman conception. particularly since the Council of Trent and Martin Luther simultaneously emphasised the sacredness of marriage. That this approach is in many respects a purely ideal one does not matter; a perfectly new civilisation cannot too thoroughly free itself from old forms; as it is, We pour far too much new wine into old bottles; but I do not think that any unprejudiced man will deny that the Roman family is one of the most glorious achievements of the human mind, one of those heights which cannot be scaled twice, and to which the most distant generations will look up in admiration, making sure at the same time that they themselves are not straying too far from the right path. In every study of the nineteenth century, e.g., when discussing the burning question of the emancipation of women or when forming an opinion with regard to those socialistic theories which, in contrast to Rome, culminate in the formula, "No family, all State," the contemplation of this lofty height will be of invaluable service. I have attempted a somewhat difficult task -- that of speaking untechnically on a technical subject. I have had to confine myself to proving the peculiar fitness of the Romans for bringing to perfection this practical art; what I have tried to emphasise as their most far- reaching achievement for human society -- the strong legal establishment of the family -- is, as will have been noticed, similar in essence to the original impelling force from which the technical mastery had gradually grown up. All that lies between, that is, the whole real practical art, had to be neglected, and equally all discussion of the advantages and disadvantages of the preponderating influence of Roman law in the nineteenth century in its purely technical connection. And without needing to tread upon such dangerous quicksands, there are plenty of suggestive considerations for us laymen. I have intentionally confined myself to politics and law. What did not come down to us as a legacy does not fall within the scope of this book, and many things that have been preserved to us, as, for example, the works of Latin poets, claim the attention of the scholar and the dilettante, but do not form a living part of our life. To put Greek and Latin poetry together and call them "classical literature" is a proof of incredible barbarism in taste and of a regrettable ignorance of the essence and value of the art of genius. Whenever Roman poetry attempts the sublime, as in Virgil and Ovid, it clings with a correct sense of its own hopeless unoriginality as slavishly as possible to Hellenic models. As Treitschke says, "Roman literature is Greek literature written in Latin." [74] What are our unhappy boys to think when in the forenoon the Iliad of the greatest poetical genius of all times is expounded to them and in the afternoon that servile epic the AEneid, written by imperial command -- both as classical models? The genuine and the false, the glorious, free creation arising out of the greatest creative necessity and the finely formed technique in the service of gold and dilettantism, genius and talent, presented as two flowers from the same stem, differing but little! As long as that pale abstraction, the idea of "classical literature," lives on among us as dogma, so long will the night of the chaos of races overshadow us, so long will our schools be sterilising institutions destroying every creative impulse. Hellenic poetry was a beginning -- a dawn -- it created a people, it lavished upon them all that the highest beauty can impart to make life sacred, all that poetry can do to elevate hapless, tortured human souls and to fill them with a feeling of invisible friendly powers -- and this fount of life wells on and never again dries up: one century after the other is refreshed by it, one people after another draws from its waters the power of inspiration to create beauty themselves; for genius is like God: it indeed reveals itself at a definite time and under distinct conditions, but in its essence it is free from conditions; what becomes a fetter to others is the material out of which it makes for itself pinions, it rises out of time and time's death-shadow, and passes in all the glow of life into eternity. In Rome, on the other hand, one may boldly assert, genius was altogether forbidden. Rome has no poetry till it begins to decline. It is not till the night sets in, when the Roman people is no longer there to hear, that the singers of Rome raise their voices; they are night flutterers; they write for the boudoirs of lascivious ladies, for the amusement of men of the world and for the court. Although Hellenes were close neighbours and from the earliest times scattered the seeds of Hellenic art, philosophy and science (for all culture in Rome was from the first of Greek origin), not a single grain took root. Five hundred years before the birth of Christ the Romans sent to Athens, to glean accurate information regarding Greek law; their ambassadors met AEschylus in the fulness of his powers and Sophocles already active as a creative artist; what an artistic splendour must have sprung up in the all-vigorous Rome after such contact, if even the slightest talent had been there! But it did not. As Mommsen says, "The development of the arts of the Muse in Latium was rather a drying up than a growing up." The Latins until their decline had no word for poet, the idea was strange to them! -- If now their poets were without exception devoid of genius, wherein lay the importance of those among them who, like Horace and Juvenal, have always excited the admiration of the linguistic artists? Manifestly, as with everything that comes from Rome, their importance lay in their art. The Romans were great builders -- of sewers and aqueducts; [75] magnificent painters -- of room-decorations; great manufacturers -- of objects belonging to the industrial arts; in their circuses, masters of the art of fighting fought for money and professional charioteers drove on the racecourse. The Roman could be a virtuoso, not an artist; all virtuosity interested him, but no art. The poems of Horace are technical masterpieces. Apart from their historically picturesque interest as descriptions of a life that has vanished, the virtuosity alone in these poems attracts us. The "wisdom of life," some one suggests by way of reproach? Yes, if such a matter-of-fact and prosaic wisdom were not better anywhere else than in the fairy realm of art, the wide-open, childlike eyes of which proclaim from every Hellenic work of poetry quite a different wisdom from that which occurs to Horace and his friends between cheese and dessert. One of the most truly poetical natures that ever lived, Byron, says of Horace:
What kind of art is that which speaks to the intelligence, never to the heart? It can only be an artificial work, an applied art; if it came from the heart it would go to the heart. In truth we still stand in this matter under French tutelage as the French stand under Syrian-Jewish (Boileau -- pseudo-Longinus); and though little of this inheritance has come into modern life, we should cast it off once for all in favour of our own poets in words and music, divinely inspired men, whose works tower high as the heavens above all that shot up in unhealthy haste like etiolated plants without root and without sap on the ruins of fallen Rome. [76] In the hands of the specialist, i.e., of the philologist, Latin poetry will be as surely and suitably preserved as the corpus juris in those of the investigators of law. If, however, the Latin tongue is to be retained at all costs as the universal trainer of the mind (instead of teaching Greek alone but more thoroughly), then let it be seen at work where it accomplishes wonders, where it, in accordance with the particular tendency of the Roman people and with its historical development, does what no other language ever did or will be able to do -- in the plastic moulding of legal notions. People say that the Latin language educates the logical sense; I will believe it, although I cannot help remarking that it was this very language in which during the scholastic centuries, in spite of all logic, more nonsense was written than in any other at any time; but whereby has the Latin language acquired a character of such conciseness and definiteness? By the fact that it was built up solely as the language of business, administration and law. This the most unpoetical of all languages is a magnificent monument of the momentous struggle of free men to obtain a sure code of law. Let our boys see it at work here. The great law-teachers of Rome have eo ipso written the finest Latin; that, and not verse-writing, was the business of the language; the faultlessly transparent formation of sentences, which shut out every possibility of misconstruction, was an important instrument of juristical applied art. From the study of law alone Cicero has taken his qualities of style. Mommsen says even of the oldest documents of the language of business and law that they were distinguished by "acumen and definiteness," [77] and philologists are of opinion that in the language of Papinian, one of the last great teachers of law (in the time of Marcus Aurelius), we have "the culmination of the capacity always to find the expression which fully answers to the depth and clearness of the thought"; his sentences, they Say, stand as though chiselled out of marble: "not a word too much, not one too few, every word in the absolutely right place, thus rendering, as far as this is feasible with language, every ambiguity impossible." [78] Intercourse with such men would indeed be a valuable addition to our education. And it seems to me that when every Roman boy knew the Twelve Tables by heart, it would be appropriate and intellectually beneficial to our youths to leave school not merely as stupid, learned subjecti, but with some accurate conceptions of private and constitutional law, thinking not merely according to formal logic, but also reasonably and practically, and steeled against all empty raving about" German law" and such-like. In the meantime, because of the position we take up in reference to the Latin language, this legacy is badly administered and consequently of but little profit. We men of the nineteenth century should not be what we are if a rich legacy from these two cultures, the Hellenic and the Roman, had not come down to us. And so we cannot in the least judge what we truly are, and confess with modesty how little that is, if we do not form a quite clear conception of the nature of these inheritances. I hope that my endeavours in this direction will not have been quite fruitless and I hope also that the reader will especially have noticed that the legacy of Rome is utterly and fundamentally different from that of Greece. In Hellas the personality of genius had been the decisive factor: whether on this side or on that of the Adriatic and the AEgean Seas, the Greeks were great so long as they possessed great men. In Rome, on the other hand, there were only great individualities in so far and so long as the people was great, and it was great as long as it physically and morally remained genuinely Roman. Rome is the extreme example of a great corporate national power, which works unconsciously but all the more surely. For that reason, however, it is less attractive than Rellas, and hence what Rome did for our civilisation is seldom justly estimated. And yet Rome command, our admiration and gratitude; its gifts were moral, not intellectual; but by this very fact it was capable of achieving great things. Not the death of a Leonidas could save Europe from the Asiatic peril, upholding man's dignity with man's freedom, and handing it over to future ages to cultivate in peace and consolidate; this could only be accomplished by a long lived State, unbending and inexorably consistent in its politics. But neither theory nor fanaticism nor speculation could create this long-lived State; it had to be rooted in the character of the citizen. This character was hard and self- seeking, but great by reason of its high sense of duty, by its capacity for making sacrifices and by its devotion to the family. The Roman, by erecting amidst the chaos of contemporary attempts at State-building a strong and solid State of his own, provided a model for all ages to come. By bringing his law to a technical perfection previously unknown, he laid the foundations of jurisprudence for all mankind. By following his natural inclination and making the family the centre of State and law, by, in fact, almost assigning extravagant importance to this conception, he raised woman to equality with man and transformed the union of the sexes into the sacredness of marriage. While our artistic and scientific culture is in many essential points derived from Greece, our social culture leads us back to Rome. I am not speaking here of material civilisation, which is derived from many countries and epochs and especially from the inventive industry of recent centuries, but of the secure moral foundations of a dignified social life; the laying of these was a great work of culture. _______________ Notes: 1. In another place I shall have to recur to the difficult question of races (see chap. iv.). I shall here only insert a very important remark; while from various sides the existence of an Aryan race is called in question, while many philologists doubt the validity of the language criterion (see Salomon Reinach, L'origine des Aryens) and individual anthropologists point to the chaotic results of the measuring of skulls (e.g., Topinard and Ratzel), the investigators in the sphere of history of law unanimously use the expression Aryans or Indo-Europeans, because they find a definite conception of law in this group of linguistically related peoples, who from the beginning and through all the branchings of a manifold development have fundamentally nothing in common with certain equally ineradicable legal conceptions prevalent among the Semites, Hamites, &c. (See the works of Savigny, Mommsen, Jhering and Leist.) No measuring of skulls and philological subtleties can get rid of this great simple fact -- a result of painfully accurate, juristical research -- and by it the existence of a moral Aryanism (in contrast to a moral non- Aryanism) is proved, no matter how varied are the elements of which the peoples of this group should be composed. 2. Jhering: Entwickelungsgeschichte des romischen Rechts, p. 81. An expression which is all the more remarkable as this great authority on law is wont to deny vigorously that anything is innate in a people; he even goes the length in his Vorgeschichte der Indoeuropaer (p. 270) of making the extraordinary statement that the inherited physical (and with it simultaneously the moral) structure of man for this is surely what the term" race" is intended to designate -- has absolutely no influence on his character, but solely the geographical surroundings, so that the Aryan, if transferred to Mesopotamia, would eo ipso have become a Semite and vice versa. In comparison with this, Haeckel's pseudo-scientific phantasma of different apes, from each of which a different race of men derives its origin, seems a sensible theory. Of course one must not forget that Jhering had to contend all his life against the mystic dogma of an "innate corpus juris," and that it is his great achievement to have paved a way for true science in this matter; that explains his exaggerations in the opposite direction. 3. Cf. Savigny: Geschichte des romischen Rechtes im Mittelalter, chap. 1. 4. Many will
think, but unjustly so, that the constitution of Lycurgus is still more
arbitrary. For Lycurgus does not undermine the foundations provided by
historical development; on the contrary, he strengthens them. The
peoples that had migrated, one after another, into Lacedaemonia, formed
layers above each other, the latest comers at the top -- and Lycurgus
allowed this to remain so. Though the Pelasgians (Helots] tilled the
land, the Achaeans
5. The expression "Aristocracy and Plebs," which Ranke likes to use for Patricians and Plebeians, is to the layman most misleading. Niebuhr already objected to the confusion of Plebs and Pobel (rabble). Patricians and Plebeians are rather like two powers in the one State, the one certainly privileged politically, the other the reverse in many ways (at least in former times), both, however, composed of free, independent, altogether autonomous yeomen. And for that reason Sallust can write, even of the oldest times: "The highest authority certainly lay with the Patricians, but the power most assuredly with the Plebeians" (Letters to Caesar, i. 5); we also see the Plebeians from earliest times play a great part in the State, and their families intermarry to a large extent with the Patricians. The uneducated man among us is therefore quite misled if he receives the idea that in Rome it was a question of an aristocracy and a proletariat. The peculiarity and the remarkable vitality of the Roman State had its foundation in this, that it contained from the first two differentiable parts (which present in their political efficacy in many points an analogy to Whigs and Tories, only that here it is a question of "born parties "), which, however, had grown up together with the State through exactly the same interests of property, law and freedom; from this the Romans derived, internally, continuous freshness of life, and in foreign affairs, perpetual unswerving unanimity. Of the Plebeian portions of the army Cato says, "viri fortissimi et milites strenuissimi"; they were indeed free-men, who fought for their own homes and hearths. In ancient Rome, as a matter of fact, only freeholders could serve in the army, and Plebeians held the rank of officer equally with Patricians (see Mommsen: Abriss des romischen Staatsrechtes, 1893, p. 258; and Esmarch: Romische Rechtsgeschichte, 3rd ed., p. 28 ff.). 6. Civil War, i. 9. Thoroughly Roman, by the way, to use such a commonplace expression at such a time! 7. Second Letter to Caesar. 8. Ideen zur Geschichte der Menschheit, Bk. XIV. 9. Mommsen: Romische Geschichte, 8th ed., i. 241 10. For the Aryan peoples in particular, see Leist's excellent Graco-italienische Rechtsgeschichte (1884) and his Altarisches Jus civile (1896), also Jhering's Vorgeschichte der Indoeuropaer. The ethnical investigations of the last years have, however, shown more and more that marriage, law and State exist in some form everywhere, even among the savages of least mental development. And this must be strongly emphasised, for the evolution mania and the pseudo-scientific dogmatism of our century have brought into most of our popular books -- absolutely invented descriptions, which are very difficult to remove from them, in spite of the sure results of exact research; and from here these descriptions also force their way into valuable and serious books. In Lamprecht's famous Deutsche Geschichte, vol. i., for instance, we find what is supposed to be a description of the social conditions of the old Teutonic peoples, sketched "under the auspices of comparative ethnology"; here we are told of a time when among these peoples a "community of sex limited by no differences of any kind prevailed, all brothers and sisters were husbands and wives to each other and all their children brothers and sisters, &c."; the first progress from this state, as we are to suppose, was the establishment of the mother's right, the so-called Matriarchate – and so the tale continues for pages; one fancies one is listening to the first stuttering of a new mythology. As far as the mother-right is concerned (i.e., family name and right of inheritance after the mother, as the fatherhood was always a common one), Jhering has convincingly shown that even the oldest Aryans, before the breaking off of a Teutonic branch, knew nothing of it (Vorgeschichte, p. 61 ff.), and the very oldest parts of the Aryan language point already to the "supreme position of the husband and father of the household" (Leist, Gracoital, Rechtsgeschichte, p. 58); that supposition therefore lacks every scientific basis. [This was meantime confirmed by Otto Schrader, Reallexicon der indogermanischen Altertumskunde, 1901, p. xxxiii.] It is still more important to establish the fact that the "comparative ethnography" appealed to by Lamprecht has found community of sex nowhere in the world among human beings. In the year 1896 a small book appeared which summarises in strictly objective fashion all the researches that refer to this, Ernst Grosse's Die Formen der Familie und die Formen der Wirtschaft, and there we see how the so-called empirical philosophers, with Herbert Spencer at their head, and the so-called strictly empirical anthropologists and ethnologists, honoured as "authorities" (with praiseworthy exceptions like Lubbock), simply started from the a priori supposition that there must be community of sex among simpler peoples, since the law of evolution demands it, and then everywhere discovered facts to confirm this. But more exact and unprejudiced investigations now prove for one race after the other that community of sex does not exist there, and Grosse may put down the apodictic assertion: "There is, in fact, no single primitive people whose sexual relations approached a condition of promiscuity or even hinted at such a thing. The firmly knit individual family is by no means a late achievement of civilisation, it exists in the lowest stages of culture as a rule without exception" (p. 42), Exact proofs are to be found in Grosse; besides, all anthropological and ethnological accounts of recent years testify how very much we have undervalued the so-called savages, how superficially we have observed and how thoughtlessly we have drawn conclusions about primitive conditions, of which we know absolutely nothing with surety; [Lately Heinrich Schurtz, in his Altersklassen und Mannerbunde, eine Darstellung der Grundformen der Gesellschaft, 1902, has fully shown that the arguments for promiscuity in early times, which are wont to be drawn from phenomena of "free love" to-day, are to be interpreted quite differently, and that, on the contrary, "with the most primitive races marriage, and in connection with it the formation of society on a purely sexual basis, is more strongly developed" (p. 200).] As this subject is essentially of the greatest importance and throws a peculiar and very noteworthy sidelight upon scientific modes of thought and power of thought in our century, I should like to add one more instructive example. The original inhabitants of central Australia are, as is well known, supposed to belong to the most backward, intellectually, of all peoples; Lubbock calls them "wretched savages, who cannot count their own fingers, not even the fingers of one hand" (The Prehistoric Age, Germ. trans., ii. 151). One can imagine with what can tempt the traveller Eyre wrote of the "remarkably peculiar cases where marriage is forbidden" in this wretched race, "where a man may not marry a woman who has the same name as he, even though she be by no means related to him." Strange! And how could these people come to have such inexplicable caprices when it would have been their duty, according to the theory of evolution, to have lived in absolute promiscuity? Since that time two English officials, who lived for years among these savages and gained their confidence, have given us a detailed account of them (Royal Society of Victoria, April 1897, summary in Nature, June 10, 1897), and it appears that their whole intellectual life, their "conceptive life" (if I may say so) is so in credibly complicated that it is almost impossible for one of us to comprehend it. These people, for example, who are supposed not to be able to count up to five, have a more complicated belief than Plato with regard to the transmigration of souls, and this faith forms the basis of their religion. Now as to their marriage laws. In the particular district spoken of here there lives an ethnically uniform race, the Aruntas. Every marriage union with strange races is forbidden; thereby the race is kept pure. But the extremely baneful effects of long-continued inbreeding (Lamprecht's Teutons would long have become Cretins before ever they entered into history!) are prevented by the Australian blacks by the following ingenious system: they divide (mentally) the whole race into four groups; for simplicity I designate them a b c d. A youth from the group a may only marry a girl from group d, the male b only the female c, the male c only the female b, the male d only the female a. The children of a and d form once more the group b, those of band c the group a, those of c and b the group d, those of d and a the group c. I simplify very much and give only the skeleton, for I fear my European reader would otherwise soon reach the stage of likewise not being able to count up to five. That such a system imposes important restrictions on the rights of the heart cannot be denied, but I ask, how could a scientifically trained selector have hit upon a more ingenious expedient to satisfy the two laws of breeding which are established by strict observation, namely, (1) the race must be kept pure, (2) continuous inbreeding is to be avoided? (see chap. iv.). Such a phenomenon calls for reverence and silence. When contemplating it one gladly keeps silent regarding such systems as those already mentioned as belonging to the end of the nineteenth century. But what must we feel when we turn our glance from the extremely laboured efforts of these worthy Australian Aruntas to Rome and behold here, in the middle of a frightful world, the sacredness of marriage, the legal status of the family, the freedom of the head of the household rising up out of the heart of the people, for it was at a much later period that it was engraved on bronze tables? 11. Thierry, Mommsen, &c. 12. Till a short time ago it was a favourite practice to represent the population of Rome as a kind of medley of peoples living side by side: it was supposed to have borrowed its traditions from Hellenic units, its administration from Etruscan ones, its law from Sabines, and its intellect from Samnites, &c. Thus Rome would have in a way been a mere word, a name, the common designation of an international trysting-place. This soap-bubble, too, which rose from the brain foam of pale professors, has burst, like so many others, in Mommsen's hands. Facts and reason both prove the absurdity of such a hypothesis, "which attempts to change the people, which, as few others, has developed its language, state, and religion purely and popularly, into a confused rubble of Etruscan, Sabine, Hellenic, and unfortunately even Pelasgic ruins" (Rom. Gesch., i. 43). The fact, however, that this thoroughly uniform and peculiar people originated from a crossing of various related races is undeniable, and Mommsen himself clearly shows this; he admits two Latin and one Sabellian race; at a later time all kinds of elements were added. but only after the Roman national character was firmly developed so that it assimilated the foreign portion. It would, however, be ridiculous to "assign Rome to the number of mixed peoples" (see p. 44). It is quite a different thing to establish the fact that the most extraordinary and most individual talents and the sturdiest power are produced by crossing. Athens was a brilliant example, Rome another, Italy and Spain in the Middle Ages equally so, just as Prussia and England prove it at the present day (more details in chap. 4). In this respect the Hellenic myth that the Latins were descended from Hercules and a Hyperborean maiden is very noteworthy as one of those incomprehensible traits of innate wisdom; whereas the desperate efforts of Dionysius of Halisarnassus (who lived at the time of the birth of Christ) to prove the descent of the Romans from Hellenes, "as they could not possibly be of barbarian origin," shows with touching simplicity how dangerous a conjunction of great learning with preconceived opinions and conclusions of reason can become! 13. The family resting upon relationship to the father alone, so that only descent from the father's side by males, and not that from the mother's side, establishes relationship at law. Only a marriage contracted in the right forms produces children who belong to the agnate family. 14. One of the last instances are the Jews who (about the year 1) came to Rome with the urgent request that it should deliver them from their Semitic sovereigns and make them into a Roman province. It is well known what gratitude they afterwards showed to Rome, which ruled them so mildly and generously. 15. Esmarch, in his Romische Rechtsgeshichte, 3rd ed., p. 185, writes as follows on the frequently very vaguely developed and defined jus gentium: "This law in the Roman sense is to be regarded neither as an aggregate of accidentally common clauses, formed from a comparison of the laws that were valid among all the nations known to the Romans, nor as an objectively existing commercial law recognised and adopted by the Roman State; it should be regarded, according to its essential substance, as a system of order for the application of private law to international relations, evolved out of the heart of Roman popular consciousness." Within the several countries the conditions of law were as little changed as possible by the Romans, one of the surprising proofs of the great respect which in the period of their true greatness they paid to all individuality. 16. The struggle which in late years raged in Central Africa between the Congo Free State and the Arabs (without being much heeded in Europe) is a new chapter in the old war between Semites and Indo-Europeans for the supremacy of the world. It is only in the last fifty years that the Arabs have been advancing from the East Coast of Africa into the interior and almost up to the Atlantic Ocean; the famous Hamed ben Mohammed ben Juna, called Tippu-Tib, was for a long time absolute ruler of an immense realm which reached almost straight across all Africa with a breadth of about 20 degrees. Countless tribes which Livingstone in his time found happy and peace-loving have since then in some cases been destroyed entirely – since the slave-trade to foreign parts is the chief occupation of the Arabs and never, in the history of mankind, was carried on to such an extent as in the second half of the nineteenth century -- in other cases the natives have undergone a remarkable moral change by contact with Semitic masters; they have become cannibals, great stupid children changed to wild beasts. It is, however, noteworthy that the Arabs, where they found it paid them, have revealed their culture, knowledge and shrewdness in laying out magnificent stretches of cultivated land, so that parts of the Congo river district are almost as beautifully farmed as an Alsatian estate. In Kassongo, the capital of this rich country, the Belgian troops found magnificent Arabian houses with silk curtains, bed- covers of satin, splendidly carved furniture, silver ware, &c.; but the aboriginal inhabitants of this district had in the meantime degenerated into slaves and cannibals. A real tangible instance of the difference between civilising and spreading culture. (See especially Dr. Hinde: The Fall of the Congo Arabs, 1897, p. 66ff., 184 ff., &c.) 17. Every reader knows by what automatic process the bird unwittingly contributes to the spread of plant life. 18. Mommsen, who feels bound strongly to condemn the action of the Romans against Carthage, admits at a later point (v. 623) that it was in his opinion neither lust of empire nor of possession but fear and jealousy that prompted it. This very distinction is of importance for our reasoned view of the part played by Rome in the history of the world. If in a world which recognises might alone as the norm of international law, we can say with certainty of a people that it was not greedy of possessions or power, it seems to me that we have given it a testimonial to its moral character which makes it tower high above all contemporary peoples. As regards "fear," it was thoroughly justified, and it is surely permitted to think that the Roman senate formed a more correct judgment of the situation than Mommsen. -- The arbitrary Caesar, of whom even his zealous friend Celius must say that he sacrifices the interests of the State to his personal ends, built Carthage again at a later time. And what did it become? The most notorious pit of vice in the world, where all whose destiny cast them thither -- Romans, Greeks, Vandals -- degenerated to the very marrow of their bones. Such devastating magic was still possessed by the curse which rested on the spot where Phoenician horrors had reigned supreme for five hundred years! From its houses of evil repute there arose a mighty cry of indignation against everything called civilisation: That it bore Tertullian and Augustine is the only merit that we can attribute to this shortsighted and shortlived creation of Caesar. -- To characterise the nineteenth century, let me quote the opinion of one who is among its so-called greatest historians. Professor Leopold von Ranke says: "The Phoenician element has by means of commerce, colonisation and, finally, also by war, in the main exercised a quickening influence upon the Occident" (Weltgeschichte, i. 542). 19. Diaspora is the name given to the widened Jewish community. Originally the term was applied to those Jews who had preferred not to return from the Babylonian captivity, because they were better off there than in their home. Soon there was no prosperous city in the world without a Jewish community; nothing is more erroneous than the widespread belief that it was the destruction of Jerusalem that first scattered the Jews over the world. In Alexandria and its neighbourhood alone there were reckoned to be under the first Roman emperors a million Jews, and Tiberius already recognised the great danger of this theocratic State in the midst of the legal State. The men of the Diaspora were keen and successful propagandists, and their considerate adoption of men as "half Jews" under remission of the painful initiatory ceremony, helped them greatly; in addition, material advantages contributed to their success, since the Jews pleaded their religion as an excuse for exemption from military service and a series of other burdensome civic duties; but the Hebrew missionaries had the greatest success with women. Now it is a noteworthy fact that this international community, which contained Hebrews and non-Hebrews, and in which all shades of faith were represented, from the most bigoted Pharisaism to open scoffing irreligion, held together like one man as soon as it was a question of the privileges and interests of the common Jewry; the Jewish freethinker would not for the world have omitted to send in his yearly contribution to Jerusalem for the temple-offerings; Philo, the famous Neoplatonist, who believed in Jahve as little as in Jupiter, nevertheless represented the Jewish community of Alexandria in Rome in favour of the synagogues threatened by Caligula; Poppaea Sabina, the mistress and later the wife of Nero, though no Hebrew but a keen member of the Jewish Diaspora, supported the prayers of the Jewish actor Alityrus, the favourite of Nero, to root out the sect of the Christians, and thereby became very probably morally responsible for that frightful persecution of the year 64, in which it is said that the apostles Peter and Paul met their death. The fact that the Romans, who otherwise at that time could not distinguish Christians from orthodox Jews, were on this occasion able to do so accurately, is regarded by Renan as conclusive proof of this charge, which was made against the Diaspora even in the first century (in Tertullian's Apologeticus, chap. xxi., for example, somewhat reserved but yet clear; see also Renan, L'Antechrist, chap. vii.). Newer convincing proofs that up to Domitian's time, and so till long after Nero's death, the Romans regarded the Christians as a Jewish sect, are to be found in eumand: Der romische Staat und die allgemeine Kirche (1890), pp. 5 ff. and 14 ff. That Tacitus distinguished clearly between Jews and Christians manifestly proves nothing in this matter, as he wrote fifty years after Nero's persecution and in his narrative transferred the knowledge of a later time to an earlier. (See, too, in connection with the "Jewish jealousy," Paul Allard: Le Christianisme et l'Empire romain de Neron d Theodose (1897), chap. i.) 20. Cf. on this, Graetz, Volksth, Geschichte der Juden, i. 653. 21. In his Discours et Conferences, 3rd ed., p. 350, he calls the destruction of Jerusalem "un immense bonheur." 22. For an understanding of the character of Caracalla and his motives I recommend the little book of Prof. Dr. Rudolf Leonhard, Roms Vergangenheit und Deutschlands Recht, 1889. pp. 93-99. He shows in the course of a few pages how this Syrian, "a descendant of the Carthaginian human butchers and the countrymen of those priests of Baal who were wont to throw their enemies into hot ovens" (the Jews did the same; see 2 Samuel, xii. 31), had adopted as his aim in life the annihilation of Rome and the destruction of the still living remains of Hellenic culture, and at the same time the flooding of the cultured European world with the pseudo-Semitic refuse of his home. This was all done systematically, maliciously and under cover of such phrases as universal franchise and religion of mankind. Thus on one single day he succeeded in destroying Rome for ever; thus unsuspecting Alexandria, the centre of art and science, became a victim of the raceless, homeless bestiality that tore down all barriers. Let us never -- never for a moment -- forget that the spirit of Caracalla is among us and waiting for its chance! Instead of repeating by rote the deceptive phrases about humanity which were the fashion even 1800 years ago in the Semitic salons in Rome, we should do better to say with Goethe:
23. Augustus was at once: (1) Princeps, that is, first citizen, at that time really only a title of honour; (2) Imperator, commander-in-chief; (3) tribune of the people for life; (4) Pontifex maximus -- the highest religions office, an office for life from earliest times; (5) Consul -- not, it is true, for life, but still in continuous possession of consular power; (6) likewise of proconsular power which embraced the government of all the provinces; and (7) likewise of censorial power, which embraced the control of morals, the right to appoint and remove from the list senators, knights, &c. 24. Details in vol. ii. chap. vii. 25. The issue of the Edictum perpetuum by Hadrian is perhaps the last great creative benefaction. 26. I quote from the abridged edition of his Roman Constitutional Law in Binding's Systematisches Handbuch der deutschen Rechtswissenschaft, p. 81 ff. 27. Romische Rechtsgesichte, 3rd ed., p. 218. 28. Certain limitations of the freedom of leaving property by will formed certainly a first indication of future times. 29. Secs. 5 and 6, J. de jure naturali, i. 2. The last words of the second excerpt I have had to translate somewhat freely. The original is: "omne suum imperium et potestatem"; how difficult it is to give these words the exact legal sense of ancient Rome can be seen in Mommsen, p. 85. Imperium means originally "utterance of the will of the community"; hence the bearer of this absolute will was called imperator; more limited and defining rather the sphere of private law is potestas. Therefore I have translated them by plenitude of power and rights (German Machtfulle and Rechte), and think I have thereby expressed the sense. 30. As a not unimportant fact, I may be allowed to mention that rule by majority is just as little Teutonic or Greek as it was Roman. (See Leist, Graco-italische Rechtsgeschicte, pp. 129, 133 ff., 727.) 31. That the public law of the Romans has not exercised upon us moderns the same influence as the private does not justify us in leaving it unmentioned. since a model of private law could not come into existence without an excellent public law. 32. De Officiis, i. 6. 33. I say this without any metaphysical arriere-pensee; whether mathematical conceptions are judgments a priori (as Kant asserts) or not, everyone will admit that geometry is the purely formal activity of the mind, in contrast to the investigation of the heavens. 34. See, for example, Holland; Jurisprudence, 6th ed., p. 5. 35. De legibus, i. 5 and 6, ii. 4. &c. 36. Romische Geschichte, iii. 620. 37. See p. 113. 38. Dictionnaire Philosophique, J. J. Rousseau, too, calls Grotius "un enfant, et qui pis est, un enfant de mauvaise foi" (Emile, v.). 39. Hegel, Propadeutik, Kursus i. § 26. 40. Metaphysische Anfangsgrunde der Rechtslehre Einleitung, § B. 41. I have no doubt that there, too, certain rules are rendered sacred by custom and binding also on the chief, but legally he is quite free; only the fear of being roasted and eaten himself can restrain him from any arbitrary procedure. 42. In reference to law as a "living power," as the product of "the creative thoughts of great individualities," in contrast to all the dog matics of the supposed law of nature, read the interesting lecture of Prof. Engen Ehrlich, Freie Rechtsfindung und freie Rechtstwissenschaft, Leipzig, 1903. 43. The assertion that history constantly repeats itself belongs to the countless untruths which are in circulation as wisdom among the "nonocentists." Never in history -- as far as our knowledge goes -- has anything repeated itself, never! Where is the repetition of thens and Sparta? of Rome? of Egypt? Where has the second Alexander flourished? where a second Homer? Neither nations nor their great men return again. And so mankind does not become wiser by "experience"; the past offers it no paradigm for the present to form its judgment; it is made worse or better, wiser or more foolish, simply by the influences that are brought to bear on its intellect and character. Gutzkow's Ben Akiba was fundamentally wrong in his famous remark, "All has occurred before"! Such an ass as he himself never lived before, and, it is to be hoped, will never appear again. And even if this were so, it would only be the repetition of the individual who under new circumstances would commit new follies for our amusement. 44. Cf. Leist, Graco-italische Rechtsgeschichte, p. 694, and for the following quotation, p. 682. 45. For examples, read the splendid chapter Plastik des Rechtes in Jhering's Geist des romischen Rechtes, § 23. Of the modern undramatic life of law, Jhering says: "One would have liked to give law, instead of a sword, a quill as its attribute, for the feathers were scarcely more necessary to the bird than to it, except that in the case of law the attribute produced the opposite effects and speed stood in converse relation to the amount of feathers employed." 46. Savigny, Geschichte des romischen Rechtes im Mittelalter, chap. i. 47. I know no more conclusive proof of the original incapacity of the Teutonic peoples to judge acutely in questions of law than that such a man as Otto the Great could not decide, otherwise than by a duel, the fundamental question whether descendants should inherit or not; this judgment of Heaven was then adopted as a piece of law for good by a pactum sempiternum! (See Grimm, Rechtsaltertumer, 3rd ed. p. 471.) 48. The detailed proof that the ideas of a progress and decline of humanity have no concrete significance will be found in the ninth chapter. 49. Graco-italische Rechtsgeschichte, p. 441. 50. Francis Bacon points out how inferior the corpus juris of Justinian is to the genuine Roman law, and blames so "dark an age" for taking the liberty of laying hands upon the work of so "brilliant an age" in order to improve it. (See the dedication of the Law Tracts.) 51. Especially of the year's edicts of the Praetors. Leist says that they had become "the principal moment in the finer development of Roman law" (as quoted above, p. 622). 52. See the clear distinction between property and possession in Table VII., clause 11. 53. In Cicero’s time every boy still learned the Twelve Tables by heart. 54. Compare the very minute information in Jhering's Vorgeschichet der Indoeuropaer, p. 233 ff. The usual rate of interest in Babylon was 20 to 25 per cent. Jhering asserts that interest was a Babylonian, a Semitic (not a Sumarian) invention; he says, "all other peoples owe their acquaintance with it to the Babylonians." Honour to whom honour is due! Also the subtlest form of interest, for instance, the favourite plan of lending money without interest, by immediately taking it from the capital, was well known in ancient Babylon, even before Homer had begun to write verses. When, then, shall we be spared the old fiction that it was only in recent centuries that the Semites were forced by the persecution of Christians to become usurers? 55. How astonished Cicero and Seneca, Scaevola and Papinian would have been at such a conception of natural law! 56. The resemblance between the principles (not the conclusions) of Spinoza and of Nietzsche is striking enough to claim our attention. 57. A few years ago I met in society an educated Jew, an owner of petroleum wells and a member of the notorious petroleum-ring. No argument could convince the honest man, who would not have harmed a fly, how morally condemnable such a ring was; his constant answer was, "I can, and therefore I may!" Spinoza word for word, as one can see. -- This brings up the grave question as to whether in Teutonic countries men of Jewish race should be appointed judges. Without any passion or prejudice, without doubting the knowledge and the spotless honour of those in question, one ought to ask oneself, on the ground of historical and ethical data, whether it should be taken for granted that these men are capable of completely assimilating a conception of law which is so thoroughly in opposition to their natural tendencies; whether they really understand and feel this law which they use so masterfully. Whoever has come to recognise the clearly marked individuality of the various races of mankind can bring up such a question in all seriousness and without any ill-will. 58. An Athenian hires an ass to carry his baggage to Megara. At a resting-place he sits down in the shadow of it: the driver will not permit this without extra payment, as he had hired the ass but not its shadow. 59. This belongs, according to the great philosopher, to "the means of persuasion that lie outside of art." 60. Up to the present day one finds this passage quoted in juristical works, but with little justification, as Aristotle is here giving merely a rhetorical trick for use in court and on the next page teaches the use of the opposite assertion. Still less to the point is the passage from the Nicomachean Ethics, v. 7. which culminates in the sentence, "Law is the mean between a certain advantage and a certain disadvantage," How great does Democritus show himself here as always when he says, with that clear insight characteristic of him, that "laws are the fruits of human thinking in contrast to the things of nature" (Diogenes Laertius, ix. 45). 61. With regard to the predominantly Semitic and Syrian race-connection of the later codifiers and embalmers of the Roman law, for whom we have shown too much admiration, see p. 91 ff. of the address of Leonhard quoted on p. 125. 62. Leist, Graco-italische Rechtsgeschichte, p. 585. 63. The above words are perhaps from one of the very free translations by Kuhlenbeck. In Bruno's De Immenso et Innumerabilibus I found the following remark (Bk. II. chap. i.): "Parvus error in principio, magnus in fine est." 64. J. Jacques Rousseau makes an excellent remark in this connection: "Si quelquefois les lois influent sur les moeurs, c'est quand elles en tirent leur force" (Lettre a d'Alembert). 65. Zimmer, Indisches Leben, p. 313 ff. 66. Etfried Muller, Dorier, 2nd ed., i. 78, ii. 282 (quoted from Leist). 67. Jhering: Entwickelungsgeschichte des romischen Rechtes, p. 55. Among the Teutons it was no better. "The right of inheritance is in the oldest German laws either restricted or denied to women altogether," says Grimm, Deutsche Rechtsaltertumer, 3rd ed. p. 407. The concessions gradually granted are to be traced to Roman influence. Where this was little or not at all felt, the German legal books, even in the Middle Ages, still show the "complete inequality of women." In the extreme North, in Scandinavia and in oldest Frisia, a woman could inherit nothing at all, neither movable nor fixed property; "the man enters into inheritance, the woman leaves it." Not till the thirteenth century did women receive a limited right of inheritance (Grimm, p. 473). These are the conditions of law to which the Germanomaniacs longingly desire to return! 68. (Romulus, xxix.) It may be mentioned by way of contrast that it was the custom among the Germans till the introduction of Christianity (among the Wends even till the seventeenth century) to kill old weak parents! (See Grimm: Rechtsaltertumer, pp. 486-90.) 69. Besides he was subject to the censorial power, as much for too great strictness in the exercise of his paternal rights as for carelessness therein; see Jhering: Geist des romischen Rechtes, § 32. 70. Esmarch: Romische Rechtsgeschichte, p. 317. 71. I speak of the true, chaste woman; for the adulteress and the courtesan were loudly celebrated by the most popular of degenerate Rome's poets, Catullus and Virgil especially. 72. See particularly Savigny: Geschichte des romischen Rechtes im Mittelalter, chaps. iii. xv. xxii., &c. 73. Bryce: The Holy Roman Empire, p. 131 of the French edition. 74. With regard to the great Lucretius as an exception, see the note on p. 35. 75. And yet not inventors even here; see Hueppe's investigations into the waterworks of the ancient Greeks, Rassenhygiene der Griechen, p. 37. 76. Of the very considerable literature which in the last years has been written on this question, and with which I have but little acquaintance, I recommend especially the small work of Prof. Albert Heintze, Latein und Deutsch, 1902, which is written with as much knowledge as it is to the point and devoid of passion. 77. Romische Geschichte, i. 471. 78. Esmarch; Romische Rechtsgeschichte, p. 400.
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