No More Learning

In the poems of Hesiod the outlines of Italy and Sicily appear better defined; there is some acquaintance with the native names of tribes, mountains, and cities in both countries; but Italy is still regarded as a
group of islands. On the other hand, in all the literature subsequent to Hesiod, Sicily and even the whole coast of Italy appear as known, at least in a general sense, to the Hellenes. The order of succession of the Greek settlements may in like manner be ascertained with some degree of precision. Thucydides evidently regarded Cumae as the earliest settlement of note in the west; and certainly he was not mistaken. It is true that many a landing-place lay
scarcely
respecting
l68 THE HELLENES IN ITALY BOOK I
nearer at hand for the Greek mariner, but none were so well protected from storms and from barbarians as the island of Ischia, upon which the town was originally situated ; and that such were the prevailing considerations that led to this settlement, is evident from the very position which was subsequently selected for it on the mainland—the steep but well-protected cliff, which still bears to the present day the venerable name of the Anatolian mother-city. Nowhere in Italy, accordingly, were the scenes of the legends of Asia Minor so vividly and tenaciously localized as in the district of Cumae, where the earliest voyagers to the west, full of those legends of western wonders, first stepped upon the fabled land and left the traces of that world of story, which they believed that they were treading, in the rocks of the Sirens and the lake of Avernus leading to the lower world. On the supposition, moreover, that it was in Cumae that the Greeks first became the neighbours of the Italians, it is easy to explain why the name of that Italian stock which was settled immediately around Cumae, the name of Opicans, came to be employed by them for centuries afterwards to designate the Italians collectively. There is a further credible tradition, that a considerable interval elapsed between the settlement at Cumae and the main Hellenic immigration into Lower Italy and Sicily, and that in this
Ionians from Chalcis and from Naxos took the lead. Naxos in Sicily is said to have been the oldest of all the Greek towns founded by strict colonization in Italy or Sicily ; the Achaean and Dorian colonizations followed, but not until a later period.
It appears, however, to be quite impossible to fix the dates of this series of events with even approximate accuracy. The founding of the Achaean city of Sybaris
721. 708. in 33, and that of the Dorian city Tarentum in 46, are
immigration
the most ancient dates in Italian history, the correctness, or at least approximation to correctness, of
probably
can’. it THE HELLENES IN ITALY
169
which may be looked upon as established. But how far beyond that epoch the sending forth of the earlier Ionian colonies reached back, is quite as uncertain as is the age which gave birth to the poems of Hesiod or even of Homer.
If Herodotus is correct in the period which he assigns to Homer, the Greeks were still unacquainted with Italy a century before the foundation of Rome. The date thus 850. assigned however, like all other statements respecting the Homeric age, is matter not of testimony, but of inference;
and any one who carefully weighs the history of the Italian alphabets as well as the remarkable fact that the Italians had become acquainted with the Greek people before the name
“ Hellenes” had emerged for the race, and the Italians borrowed their designation for the Hellenes from the stock of the G111! ’ or Graeci that early fell into abeyance in Hellas,1 will be inclined to carry back the earliest intercourse of the
1 Whether the name of Graeci was originally associated with the interior of Epirus and the region of Dodona, or pertained rather to the Aetolians who perhaps earlier reached the western sea, may be left an open question ; it must at a remote period have belonged to a prominent stock
or aggregate of stocks of Greece proper and have passed over from these
to the nation as a whole. In the Eoai of Hesiod it appears as the older collective name for the nation, although it is manifest that it is intentionally
thrust aside and subordinated to that of Hellenes. The latter does not
occur in Homer, but, in addition to Hesiod, it is found in Archilochus
about the year 50, and it may very well have come into use considerably 700. earlier (Duncker, Gen/r. a’. Alt. iii. 18, 556). Already before this period, therefore, the Italians were so widely acquainted with the Greeks
that that name, which early fell into abeyance in Hellas, was retained by them as a collective name for the Greek nation, even when the latter itself adopted other modes of self-designation. It was withal only natural that foreigners should have attained to an earlier and clearer consciousness of the fact that the Hellenic stocks belonged to one race than the latter them selves, and that hence the collective designation should have become more definitely fixed among the former than with the latter-not the less. that it was not taken directly from the well-known Hellenes who dwelt the nearest to them. It is difficult to see how we can reconcile with this fact the state ment that a century before the foundation of Rome Italy was still quite unknown to the Greeks of Asia Minor. We shall speak of the alphabet below ; its history yields entirely similar results. It may perhaps be characterized as a rash step to reject the statement of Herodotus respecting the age of Homer on the strength of such considerations ; but is there no rashness in following implicitly the guidance of tradition in questions of this kind 7
170
THE HELLENES IN ITALY 800K I
Italians with the Greeks to an age considerably more remote.
The history of the Italian and Sicilian Greeks forms no part of the history of Italy; the Hellenic colonists of the migration. west always retained the closest connection with their original home and participated in the national festivals and privileges of Hellenes. But it is of importance even as
bearing on Italy, that we should indicate the diversities of character that prevailed in the Greek settlements there, and at least exhibit some of the leading features which enabled the Greek colonization to exercise so varied an influence on Italy.
Of all the Greek settlements, that which retained most thoroughly its distinctive character and was least affected by influences from without was the settlement which gave birth to the league of the Achaean cities, composed of the towns of Siris, Pandosia, Metabus or Metapontum, Sybaris with its offsets Posidonia and Laus, Croton, Caulonia, Temesa,
Terina, and Pyxus. These colonists, taken as a whole, belonged to a Greet‘. stock which steadfastly adhered to its own peculiar dialect, having closest aflinity with the Doric, and for long retained no less steadfastly the old national Hellenic mode of writing, instead of adopting the more recent alphabet which had elsewhere come into general use ; and which preserved its own nationality, as distinguished alike from the barbarians and from other Greeks, by the firm bond of a federal constitution. The language of Polybius regarding the Achaean symmachy in the Peloponnesus may be applied also to these Italian Achaeans; “Not only did they live in federal and friendly communion, but they made use of like laws, like weights, measures, and coins, as well as of the same
and judges. ”
This league of the Achaean cities was strictly a coloniza
tion. The cities had no harbours-Croton alone had a
Character of the Greek im
magistrates, councillors,
CHAD. 2 THE HELLENES IN ITALY
17!
paltry roadstead—and they had no commerce of their own ; the Sybarite prided himself on growing gray between the bridges of his lagoon-city, and Milesians and Etruscans
and sold for him. These Achaean Greeks, however, were not merely in possession of a narrow belt along the coast, but ruled from sea to sea in the “land of wine” and “of oxen” (Oivw-rpt’a, ’Im)t[a) or the “great Hellas,” the native agicultural population was compelled
to farm their lands and to pay to them tribute in the character of clients or even of serfs. Sybaris-in its time
the largest city in Italy—exercised dominion over four barbarian tribes and five-and-twenty townships, and was
able to found Laus and Posidonia on the other sea. The exceedingly fertile low grounds of the Crathis and Bradanus yielded a superabundant produce to the Sybarites and Metapontines—it was there perhaps that grain was first cultivated for exportation. The height of prosperity which these states in an incredibly short time attained is strikingly attested by the only surviving works of art of these Italian Achaeans, their coins of chaste antiquely beautiful work manship—the earliest monuments of art and writing in Italy which we possess, as it can be shown that they had already begun to be coined in 174. These coins show 580. that the Achaeans of the west did not simply participate in
the noble development of plastic art that was at this very time taking place in the motherland, but were even superior in technical skill. For, while the silver pieces which were in use about that time in Greece proper and among the Dorians in Italy were thick, often stamped only
on one side, and in general without inscription, the Italian Achaeans with great and independent skill struck from two similar dies partly cut in relief, partly sunk, large thin silver coins always furnished with inscriptions, and display
ing the advanced organization of a civilized state in the mode of impression, by which they were carefully protected
bought
I72
THE HELLENES IN ITALY BOOK 1
from the process of counterfeiting usual in that age-the plating of inferior metal with thin silver-foil.
Nevertheless this rapid bloom bore no fruit. Even Greeks speedily lost all elasticity of body and of mind in a life of indolence, in which their energies were never tried either by vigorous resistance on the part of the natives or by hard labour of their own. None of the brilliant names in Greek art or literature shed glory on the Italian
Achaeans, while Sicily could claim ever so many of them, and even in Italy the Chalcidian Rhegium could produce its Ibycus and the Doric Tarentum its Archytas. With this people, among whom the spit was for ever turning on the hearth, nothing flourished from the outset but boxing. The rigid aristocracy which early gained the helm in the several communities, and which found in case of need a sure reserve of support in the federal power, prevented the rise of tyrants ; but the danger to be apprehended was that the government of the best might be converted into a government of the few, especially if the privileged families in the different communities should combine to assist each other in carrying out their designs. Such was the pre dominant aim in the combination of mutually pledged "friends ” which bore the name of Pythagoras. It enjoined the principle that the ruling class should be “honoured like gods,” and that the subject class should be “held in subservience like beasts,” and by such theory and practice
a formidable reaction, which terminated in the annihilation of the Pythagorean “friends” and the renewal of the ancient federal constitution. But frantic party feuds, insurrections en mil-$86 of the slaves, social abuses of all sorts, attempts to supply in practice an impracticable state philosophy, in short, all the evils of demoralized civilization never ceased to rage in the Achaean communities, till under the accumulated pressure their political power utterly broke down.
provoked
CHAP- it THE HELLENES IN ITALY
173
It is no matter of wonder therefore that the Achaeans settled in Italy exercised less influence on its civilization than the other Greek settlements. An agricultural people, they had less occasion than those engaged in commerce to extend their influence beyond their political bounds. With in their own dominions they enslaved the native population and crushed the germs of their national development as Italians, while they refused to open up to them by means of complete Hellenization a new career. In this way the Greek characteristics, which were able elsewhere to retain a vigorous vitality notwithstanding all political misfortunes, disappeared more rapidly, more completely, and more ingloriously in Sybaris and Metapontum, in Croton and Posidonia, than in any other region ; and the bilingual mongrel peoples, that arose in subsequent times out of the remains of the native Italians and Achaeans and the more recent immigrants of Sabellian descent, never attained any real prosperity. This catastrophe, however, belongs in point of time to the succeeding period.
The settlements of the other Greeks were of a different [one character, and exercised a very different effect upon Italy. Dorian They by no means despised agriculture and the acquisition
of territory; it was not the wont of the Hellenes, at least
when they had reached their full vigour, to rest content
after the manner of the Phoenicians with a fortified factory
in the midst of a barbarian land. But all their cities were founded primarily and especially for the sake of trade, and accordingly, altogether differing from those of the Achaeans,
they were uniformly established beside the best harbours
and lading-places. These cities were very various in their
origin and in the occasion and period of their respective foundations; but there subsisted between them a certain fellowship, as in the common use by all of these towns of certain modern forms of the alphabet,1 and in the very
1 Thus the three old Oriental forms of the i (5), l (/\) and r (P), for
Tarentum.
Dorism of their language, which made its way at an early date even into those towns that, like Cumae for example,1 originally spoke the soft Ionic dialect. These settlements were of very various degrees of importance in their hear ing on the development of Italy : it is suflicient at present to mention those which exercised a decided influence over the destinies of the Italian races, the Doric Tarentum and the Ionic Cumae.
Of all the Hellenic settlements in Italy, Tarentum was destined to play the most brilliant part. The excellent harbour, the only good one on the whole southern coast, rendered the city the natural emporium for the traflic of the south of Italy, and for some portion even of the commerce of the Adriatic. The rich fisheries of its gulf,
the production and manufacture of its excellent wool, and the dyeing of it with the purple juice of the Tarentine murex, which rivalled that of Tyre-both branches of industry introduced there from Miletus in Asia Minor-employed thousands of hands, and added to the carrying trade a traflic of export. The coins struck at Tarentum in greater quantity than anywhere else in Grecian Italy, and struck pretty numerously even in gold, furnish to us a significant attestation of the lively and widely extended commerce of the Tarentines. At this epoch, when Tarentum was still contending with Sybaris for the first place among the Greek cities of Lower Italy, its extensive commercial con nections must have been already forming; but the Taren tines seem never to have steadily and successfully directed their efforts to a substantial extension of their territory after the manner of the Achaean cities.
which as apt to be confounded with the forms of the r, g, and p the signs I I, R were early proposed to be substituted, remained either in exclusive or in very preponderant use among the Achaean colonies, while the other Greeks of Italy and Sicily without distinction of race used exclusively or at
any rate chiefly the more recent forms.
1 Big. the inscription on an earthen vase of Cumae runs thus :
Taraler épl Mguhor' F6: 6’ U as xMdw'ct SWSM: firms.
114
THE HELLENES IN ITALY BOOK 1
CHAP. X THE HELLENES IN ITALY
175
While the most easterly of the Greek settlements in Italy Greek thus rapidly rose into splendour, those which lay furthest to
the north, in the neighbourhood of Vesuvius, attained a
more moderate prosperity. There the Cumaeans had crossed from the fertile island of Aenaria (Ischia) to the mainland, and had built a second home on a hill close by
the sea, from whence they founded the seaport of Dicaearchia (afterwards Puteoli) and, moreover, the “new city,” Neapolis. They lived, like the Chalcidian cities generally in Italy and Sicily, in conformity with the laws which Charondas of Catana (about 100) had established, under a constitution democratic but modified by a high census, which placed the power in the hands of a council of members selected from the wealthiest men-a constitu tion which proved lasting and kept these cities free, upon the whole, from the tyranny alike of usurpers and of the mob. We know little as to the external relations of these Campanian Greeks. They remained, whether from necessity or from choice, confined to a district of even narrower limits than the Tarentines ; and issuing from it not for purposes of conquest and oppression, but for the holding of peaceful commercial intercourse with the natives,
created the means of a prosperous existence for themselves, and at the same time took the foremost place among the missionaries of Greek civilization in Italy.
650
they
While on the one side of the straits of Rhegium the
whole southern coast of the mainland and its western coast
as far as Vesuvius, and on the other the larger eastern half regions to of the island of Sicily, were Greek territory, the west coast the Greek-‘t of Italy northward of Vesuvius and the whole of the east
coast were in a position essentially different. No Greek settlements arose on the Italian seaboard of the Adriatic;
and with this we may evidently connect the comparatively
small number and subordinate importance of the Greek
colonies planted on the opposite Illyrian shore and on the
Relation,
X12560
I76
THE HELLENES IN ITALY 8008 I
numerous adjacent islands. Two considerable mercantile
towns, Epidamnus or Dyrrachium (now Durazzo, 127), and 587. Apollonia (near Avlona, about 167), were founded upon the portion of this coast nearest to Greece during the regal
period of Rome ; but no old Greek colony can be pointed out further to the north, with the exception perhaps of the insignificant settlement at Black Corcyra (Curzola, about
No adequate explanation has yet been given why the Greek colonization developed itself in this direction to so meagre an extent. Nature herself appeared to direct the Hellenes thither, and in fact from the earliest times there existed a regular traflic to that region from Corinth and still more from the settlement at Corcyra
580. 174? ).
(Corfu) 710. founded not long after Rome (about 44); a traflic, which
had as its emporia on the Italian coast the towns of Spina. and Atria, situated at the mouth of the P0. The storms of the Adriatic, the inhospitable character at least of the Illyrian coasts, and the barbarism of the natives are manifestly not in themselves sufficient to explain this fact. But it was a circumstance fraught with the most momentous consequences for Italy, that the elements of civilization which came from the east did not exert their influence on its eastern provinces directly, but reached them only through the medium of those that lay to the west. The Adriatic commerce carried on by Corinth and Corcyra was shared by the most easterly mercantile city of Magna Graecia, the Doric Tarentum, which by the possession of Hydrus (Otranto) had the command, on the Italian side, of the entrance of the Adriatic. Since, with the exception of the ports at the mouth of the Po, there were in those times no emporia worthy of mention along the whole east coast-the rise of Ancona belongs to a far later period, and later still the rise of Brundisium—it may well be conceived that the mariners of Epidamnus and Apollonia frequently discharged their cargoes at Tarentum. The
CHAP. x THE HELLENES IN ITALY
177
Tarentines had also much intercourse with Apulia by land ; all the Greek civilization to be met with in the south-east of Italy owed its existence to them. That civilization, however, was during the present period only in its infancy; it was not until a later epoch that the Hellenism of Apulia was developed.
It cannot be doubted, on the other hand, that the west Relations
coast of Italy northward of Vesuvius was frequented in very of the western
early times by the Hellenes, and that there were Hellenic Italians factories on its promontories and islands. Probably the to the
Greeks. earliest evidence of such voyages is the localizing of the
legend of Odysseus on the coasts of the Tyrrhene Sea. 1 When men discovered the isles of Aeolus in the Lipari islands, when they pointed out at the Lacinian cape the isle of Calypso, at the cape of Misenum that of the Sirens, at the cape of Circeii that of Circe, when they recognized in the steep promontory of Terracina the towering burial mound of Elpenor, when the Laestrygones were provided with haunts near Caieta and Formiae, when the two sons of Ulysses and Circe, Agrius, that is the “wild,” and Latinus, were made to rule over the Tyrrhenians in the “inmost recess of the holy islands,” or, according to a more recent version, Latinus was called the son of Ulysses and Circe, and Auson the son of Ulysses and Calypso—we
in these legends ancient sailors’ tales of the seafarers of Ionia, who thought of their native home as they traversed the Tyrrhene Sea. The same noble vivid< ness of feeling, which pervades the Ionic poem of the voyages of Odysseus, is discernible in this fresh localization
1 Among Greek writers this Tyrrhene legend of Odysseus makes its earliest appearance in the Theogony of Hesiod, in one of its more recent sections, and thereafter in authors of the period shortly before Alexander, Ephorus (from whom the so-called Scymnus drew his materials), and the writer known as Scylax. The first of these sources belongs to an age when Italy was still regarded by the Greeks as a group of islands, and is certainly therefore very old; so that the origin of these legends may, on the_whole, be confidently placed in the regal period of Rome.
VOL. I I2
recognize
178
THE HELLENES IN ITALY BOOK 1
of the same legend at Cumae itself and throughout the regions frequented by the Cumaean mariners.
Other traces of these very ancient voyages are to be found in the Greek name of the island Aethalia (Ilva, Elba), which appears to have been (after Aenaria) one of the places earliest occupied by Greeks, perhaps also in that of the seaport Telamon in Etruria ; and further in the two townships on the Caerite coast, Pyrgi (near S. Severa) and Alsium (near Palo), the Greek origin of which is indicated beyond possibility of mistake not only by their names, but also by the peculiar architecture of the walls of Pyrgi, which differs essentially in character from that of the walls of Caere and the Etruscan cities generally. Aethalia, the “fire-island,” with its rich mines of copper and especially of iron, probably sustained the chief part in this commerce, and there in all likelihood the foreigners had their central settlement and seat of traflic with the natives; the more especially as they could not have found the means of smelting the ores on the small and not well-wooded island without intercourse with the mainland. The silver mines of Populonia also on the headland opposite to Elba were
perhaps already known to the Greeks and wrought by them.
as was undoubtedly the case, the foreigners, ever in those times intent on piracy and plunder as well as trade, did not fail, when opportunity offered, to levy contributions on the natives and to carry them off ‘as slaves, the natives on their part exercised the right of retaliation; and that the Latins and Tyrrhenes retaliated with greater energy and better fortune than their neighbours in the south of Italy,
attested not merely by the legends to that effect, but by the actual results. In these regions the Italians succeeded in resisting the foreigners and in retaining, or at any rate soon resuming, the mastery not merely of their own mercantile cities and mercantile ports, but also of their
is
If,
CHAP. X THE HELLENES IN ITALY
r79
own sea. The same Hellenic invasion which crushed and denationalized the races of the south of Italy, directed the energies of the peoples of Central Italy—very much indeed against the will of their instructors-towards navigation and the founding of towns. It must have been in this quarter that the Italians first exchanged the raft and the boat for the oared galley of the Phoenicians and Greeks. Here too we first encounter great mercantile cities, particularly Caere in southern Etruria and Rome on the Tiber, which, if we may judge from their Italian names as well as from their being situated at some distance from the sea, were-like the exactly similar commercial towns at
the mouth of the Po, Spina and Atria, and Ariminum further to the south—certainly not Greek, but Italian foundations. It is not in our power, as may easily be supposed, to exhibit the historical course of this earliest reaction of Italian nationality against foreign aggression; but we can still recognize the fact, which was of the greatest
as bearing upon the further development of Italy, that this reaction took a different course in Latium and in southern Etruria from that which it exhibited in the properly Tuscan and adjoining provinces.
Legend itself contrasts in a significant manner the Latin Hellenel with the “ wild Tyrrhenian,” and the peaceful beach at the and Latin! ‘ mouth of the Tiber with the inhospitable shore of the Volsci.
This cannot mean that Greek colonization was tolerated in
some of the provinces of Central Italy, but not permitted in
others. Northward of Vesuvius there existed no independent
Greek community at all in historical times; if Pyrgi once
was such, it must have already reverted, before the period
at which our tradition begins, into the hands of the Italians
or in other words of the Caerites. But in southern Etruria,
in Latium, and likewise on the east coast, peaceful inter
course with the foreign merchants was protected and encouraged; and such was not the case elsewhere. The
importance
Hellenes and Etrus cans.
180 THE HELLENES IN ITALY BOOK 1
position of Caere was especially remarkable. “The Caerites,” says Strabo, “were held in much repute among the Hellenes for their bravery and integrity, and because, powerful though they were, they abstained from robbery. ” It is not piracy that is thus referred to, for in this the merchant of Caere must have indulged like every other. But Caere was a sort of free port for Phoenicians as well as Greeks. We have already mentioned the Phoenician station —-subsequently called Punicum-and the two Hellenic stations of Pyrgi and Alsium (pp. 163, 178). It was these ports that the Caerites refrained from robbing, and it was beyond doubt through this tolerant attitude that Caere, which possessed but a wretched roadstead and had no mines in its neighbourhood, early attained so great prosperity and acquired, in reference to the earliest Greek commerce, an importance even greater than the cities of the Italians destined by nature as emporia at the mouths of the Tiber and P0. The cities we have just named are those which. appear as holding primitive religious intercourse with Greece. The first of all barbarians to present gifts to the Olympian Zeus was the Tuscan king Arimnus, perhaps a ruler of Ariminum. Spina and Caere had their special treasuries in the temple of the Delphic Apollo, like other communities that had regular dealings with the shrine ; and the sanctuary at Delphi, as well as the Cumaean oracle, is interwoven with the earliest traditions of Caere and of Rome. These cities, where the Italians held peaceful sway and carried on friendly traffic with the foreign merchant, became pre eminently wealthy and powerful, and were genuine marts not only for Hellenic merchandise, but also for the germs of Hellenic civilization.
Matters stood on a different footing with the “wild Tyr rhenians. " The same causes, which in the province of Latium, and in the districts on the right bank of the Tiber and along the lower course of the Po that were perhaps
CHAP. X THE HELLENES IN ITALY 18!
rather subject to Etruscan supremacy than strictly Etruscan, Etruscan
had led to the emancipation of the natives from the maritime power of the foreigner, led in Etruria proper to the development of piracy and maritime ascendency, in conse quence possibly of the difference of national character disposing the people to violence and pillage, or it may be for other reasons with which we are not acquainted. The Etruscans were not content with dislodging the Greeks from Aethalia and Populonia; even the individual trader was
not tolerated by them, and soon Etruscan privateers roamed over the sea far and wide, and rendered the name of the Tyrrhenians a terror to the Greeks. It was not without reason that the Greeks reckoned the grapnel as an Etruscan invention, and called the western sea of Italy the sea of the Tuscans. The rapidity with which these wild corsairs multiplied and the violence of their proceedings
,in the Tyrrhene Sea in particular, are very clearly shown by their establishment on the Latin and Campanian coasts. The Latins indeed maintained their ground in Latium proper, and the Greeks at Vesuvius ; but between them and by their side the Etruscans held sway in Antium and in Surrentum. The Volscians became clients of the Etruscans ; their forests contributed the keels for the Etruscan galleys; and seeing that the piracy of the Antiates was only terminated by the Roman occupation, it is easy to understand why the coast of the southern Volscians bore among Greek mariners the name of the Laestrygones. The high promontory of Sorrento with the cliff of Capri which is still more precipitous but destitute of any harbour-a station thoroughly adapted for corsairs on the watch, commanding a prospect of the Tyrrhene Sea between the bays of Naples and Salerno— was early occupied by the Etruscans. They are aflirmed even to have founded a “league of twelve towns ” of their own in Campania, and communities speaking Etruscan still existed in its inland districts in times quite historical.
maritime
power.
apparently
Etruscan commerce.
554
182 THE HELLENES IN ITALY noon 1
These settlements were probably indirect results of the maritime dominion of the Etruscans in the Campanian sea, and of their rivalry with the Cumaeans at Vesuvius.
The Etruscans however by no means confined themselves to robbery and pillage. The peaceful intercourse which they held with Greek towns is attested by the gold and silver coins which, at least from the year 200, were struck by the Etruscan cities, and in particular by Populonia, after a Greek model and a Greek standard. The circumstance, moreover, that these coins are modelled not upon those of Magna Graecia, but rather upon those of Attica and even Asia Minor, is perhaps an indication of the hostile attitude in which the Etruscans stood towards the Italian Greeks. For commerce they in fact enjoyed the most favourable position, far more advantageous than that of the inhabitants of Latium. Inhabiting the country from sea to sea, they commanded the great Italian free ports on the western waters, the mouths of the Po and the Venice of that time on the eastern sea, and the land route which from ancient times led from Pisa on the Tyrrhene Sea to Spina on the
Adriatic, while in the south of Italy they commanded the rich plains of Capua and Nola. They were the holders of the most important Italian articles of export, the iron of Aethalia, the copper of Volaterrae and Campania, the silver of Populonia, and even the amber which was brought to them from the Baltic (p. r62). Under the protection of their piracy, which constituted as it were a rude naviga tion act, their own commerce could not fail to flourish. It need not surprise us to find Etruscan and Milesian merchants competing in the market of Sybaris, nor need we be astonished to learn that the combination of privateer ing and commerce on a great scale generated the unbounded and senseless luxury, in which the vigour of Etruria early wasted away.
While in Italy the Etruscans and, although in a lesser
CRAP. 1: THE HELLENES IN ITALY
183
degree, the Latins thus stood opposed to the Hellenes, Rivalry warding them off and partly treating them as enemies, this if? ? ? ’ antagonism to some extent necessarily affected the rivalry nicians and which then above all dominated the commerce and mum“ navigation of the Mediterranean—the rivalry between the Phoenicians and Hellenes. This is not the place to set
forth in detail how, during the regal period of Rome, these
two great nations contended for supremacy on all the shores
of the Mediterranean, in Greece even and Asia Minor, in Crete and Cyprus, on the African, Spanish, and Celtic coasts. This struggle did not take place directly on Italian
soil, but its effects were deeply and permanently felt in Italy. The fresh energies and more universal endowments
of the younger competitor had at first the advantage everywhere. Not only did the Hellenes rid themselves of
the Phoenician factories in their own European and Asiatic homes, but they dislodged the Phoenicians also from Crete
and Cyprus, gained a footing in Egypt and Cyrene, and possessed themselves of Lower Italy and the larger eastern
half of the island of Sicily. On all hands the small trading stations of the Phoenicians gave way before the more energetic colonization of the Greeks. Selinus (I26) and 628. Agrigentum (r74) were founded in western Sicily; the 580 more remote western sea was traversed, Massilia was built
on the Celtic coast (about 150), and the shores of Spain 600. were explored, by the bold Phocaeans from Asia Minor.
But about the middle of the second century the progress of Hellenic colonization was suddenly arrested; and there is
no doubt that the cause of this arrest was the contemporary rapid rise of Carthage, the most powerful of the Phoenician cities in Libya-a rise manifestly due to the danger with which Hellenic aggression threatened the whole Phoenician race. If the nation which had opened up maritime commerce on the Mediterranean had been already dislodged by its younger rival from the sole command of the western
Phoeni cians and Italians in
to the Hellenes.
579.
537.
the natives of Sicily and Italy in order to resist the Hellenes. When the Cnidians and Rhodians made an attempt about 115 to establish themselves at Lilybaeum, the centre of the Phoenician settlements in Sicily, they were expelled by the natives—the Elymi of Segeste—in concert with the Phoenicians. When the Phocaeans settled about 217 at Alalia (Aleria) in Corsica opposite to Caere, there appeared for the purpose of expelling them a combined fleet of Etruscans and Carthaginians, numbering a hundred and
twenty sail; and although in the naval battle that ensued -—one of the earliest known in history—the fleet of the Phocaeans, which was only half as strong, claimed the victory, the Carthaginians and Etruscans gained the object which they had in view in the attack; the Phocaeans abandoned Corsica, and preferred to settle at Hyele (Velia)
184
THE HELLENES IN ITALY BOOK 1
half from the possession of both lines of communication between the eastern and western basins of the Mediterranean, and from the monopoly of the carrying trade between east and west, the sovereignty at least of the seas to the west of Sardinia and Sicily might still be saved for the Orientals ; and to its maintenance Carthage applied all the tenacious and circumspect energy peculiar to the Aramaean race. Phoenician colonization and Phoenician resistance assumed an entirely different character. The earlier Phoenician settlements, such as those in Sicily described by Thucydides, were mercantile factories: Carthage subdued extensive territories with numerous subjects and powerful fortresses. Hitherto the Phoenician settlements had stood isolated in
to the Greeks; now the powerful Libyan city centralized within its sphere the whole warlike resources of those akin to it in race with a vigour to which the history of the Greeks can produce nothing parallel.
Perhaps the element in this reaction which exercised
the most momentous influence in the sequel was the close
opposition
opposition relation into which the weaker Phoenicians entered with
CRAP. x THE HELLENES IN ITALY
185
on the less exposed coast of Lucania. A treaty between Etruria and Carthage not only established regulations regarding the import of goods and the giving due effect to rights, but included also an alliance-in-arrns (U‘UILIMGXIG), the serious import of which is shown by that very battle of Alalia. It is a significant indication of the position of the Caerites, that they stoned the Phocaean captives in the market at Caere and then sent an embassy to the Delphic Apollo to atone for the crime.
Latium did not join in these hostilities against the Hellenes ; on the contrary, we find friendly relations subsisting in very ancient times between the Romans and the Phocaeans in Velia as well as in Massilia, and the Ardeates are‘ even said to have founded in concert with the Zacynthians a colony in Spain, the later Saguntum. Much less, however, did the Latins range themselves on the side of the Hellenes: the neutrality of their position in this respect is attested by the close relations maintained between Caere and Rome, as well as by the traces of ancient intercourse between the Latins and the Carthaginians. It was through the medium of the Hellenes that the Canaanite race became known to the Romans, for, as we have already seen (p. 164), they always designated it by its Greek name; but the fact that they did not borrow from the Greeks either the name for the city of Carthage1 or the national name of the Afri,2 and the circumstance that among the earlier Romans Tyrian wares were designated by the adjective Sarranus',a which in like manner precludes the
1 The Phoenician name was Karthada; the Greek, Karchedon; the Roman. Cartago.
9 The name Afri, already current in the days of Ennius and Cato (comp. Scipio Africanur), is certainly not Greek, and is most probably cognate with that of the Hebrews.
' The adjective Sarranur was from early times applied by the Romans to the Tyr'ian piurple and the Tyrian flute; and Sarranus was in use also as a surname, at least from the time of the war with Hannibal. Sarra, which occurs in Ennius and Plautus as the name of the city, was perhaps formed from Sarranm‘, not directly from the native name Sor. The Greek
I86 THE HELLENES IN ITALY soox r
idea of Greek intervention, demonstrate—what the treaties of a later period concur in proving-the direct commercial intercourse anciently subsisting between Latium and Carthage.
The combined power of the Italians and Phoenicians actually succeeded in substantially retaining the western half of the Mediterranean in their hands. The north western portion of Sicily, with the important ports of Soluntum and Panormus on the north coast, and Motya at the point which looks towards Africa, remained in the direct or indirect possession of the Carthaginians. About the age of Cyrus and Croesus, just when the wise Bias was endeavouring to induce the Ionians to emigrate in a body
550.
from Asia Minor and settle in Sardinia (about 200), the Carthaginian general Malchus anticipated them, and sub dued a considerable portion of that important island by force of arms; half a century later, the whole coast of Sardinia appears in the undisputed possession of the Carthaginian community. Corsica on the other hand, with the towns of Alalia and Nicaea, fell to the Etruscans, and the natives paid to'these tribute of the products of their poor island, pitch, wax, and honey. In the Adriatic sea, moreover, the allied Etruscans and Carthaginians ruled, as in the waters to the west of Sicily and Sardinia. The Greeks, indeed, did not give up the struggle. Those Rhodians and Cnidians, who had been driven out of Lilybaeum, established themselves on the islands between Sicily and Italy and founded there the town of Lipara
079. (r7 Massilia flourished in spite of its isolation, and soon monopolized the trade of the region from Nice to the Pyrenees. At the Pyrenees themselves Rhoda (now Rosas) was established as an offset from Lipara, and aflirmed that Zacynthians settled in Saguntum, and even that Greek
term, Tynn, Tyn'nu. seems not to occur in any Roman author mule: toAfranlns (up. Fest. p. 355 M. ). Compare Movers, Pun. ii. r, :74.
it is
5).
cHAP. 1: THE HELLENES IN ITALY
I87
dynasts ruled at Tingis (Tangiers) in Mauretania. But the Hellenes no longer gained ground ; after the foundation of Agrigentum they did not succeed in acquiring any important additions of territory on the Adriatic or on the western sea, and they remained excluded from the Spanish waters as well as from the Atlantic Ocean. Every year the Liparaeans had their conflicts with the Tuscan “sea-robbers,” and the Carthaginians with the Massiliots, the Cyrenaeans, and above all with the Sicilian Greeks; but no results of permanent moment were on either side achieved, and the issue of struggles which lasted for centuries was, on the whole, the simple maintenance of the status quo.
Thus Italy was—if but indirectly-indebted to the Phoenicians for the exemption of at least her central and northern provinces from colonization, and for the counter development of a national maritime power there, especially in Etruria. But there are not wanting indications that the Phoenicians already found it worth while to manifest that
jealousy which is usually associated with naval domination, if not in reference to their Latin allies, at any rate in refer ence to their Etruscan confederates, whose naval power was greater. The statement as to the Carthaginians having prohibited the sending forth of an Etruscan colony to the Canary islands, whether true or false, reveals the existence of a rivalry of interests in the matter.
Modern character of Italian culture.
CHAPTER XI
LAW AND JUSTICE
HISTORY, as such, cannot reproduce the life of a people in
the infinite variety of its details; it must be with content
exhibiting the development of that life as a whole. The doings and dealings, the thoughts and imaginings of the individual, however strongly they may reflect the character istics of the national mind, form no part of history. Never theless it seems necessary to make some attempt to indicate —only in the most general outlines-the features of individual life in the case of those earlier ages which are, so far as history is concerned, all but lost in oblivion; for it is in this field of research alone that we acquire some idea of the breadth of the gulf which separates our modes of thinking and feeling from those of the civilized nations of antiquity. Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difliculty we recognize to have once been green. Instead of threading that dreary maze and attempting to classify those shreds of humanity, the Chones and Oenotrians, the Siculi and the Pelasgi, it will be more to the purpose to inquire how the real life of the people in ancient Italy expressed itself in their law, and their ideal life in religion; how they farmed and how they traded; and whence the several nations derived the art of writing and other elements of culture. Scanty as our
188 LAW AND JUSTICE BOOK 1
cnnr. x1 LAW AND JUSTICE
189
knowledge in this respect is in reference to the Roman people and still more so in reference to the Sabellians and Etruscans, even the slight and very defective information which is attainable will enable the mind to associate with these names some more or less clear glimpse of the once living reality. The chief result of such a view (as we may here mention by way of anticipation) may be summed up in saying that fewer traces comparatively of the primitive
state of things have been preserved in the case of the Italians, and of the Romans in particular, than in the case of any other Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity of women to hold property, the acquiring of wives by purchase, the primitive form of burial, blood-revenge, the clan-constitution conflicting with
the authority of the community, a vivid natural symbolism —all these, and numerous phenomena of a kindred character, must be presumed to have lain at the foundation of civilization in Italy as well as elsewhere; but at the epoch when that civilization comes clearly into view they have already wholly disappeared, and only the comparison of kindred races informs us that such things once existed. In this respect Italian history begins at a far later stage of civilization than e. g. the Greek or the Germanic, and from the first it exhibits a comparatively modern character.
The laws of most of the Italian stocks are lost in oblivion. Some information regarding the law of the Latin land alone has survived in . Roman tradition.
All jurisdiction was vested in the community or, in other Jurisdic
words, in the king, who administered justice or “ command ” (fas) on the “days of utterance ” (dies fasti) at the “judg ment platform ” (tribunal) in the place of public assembly, sitting on the “chariot-seat” (sella :uruh's);1 by his side
1 This "chariot-seat"—philological1y no other explanation can well be given (comp. Servius ad Aen. i. 16)—is most simply explained by supposing that the king alone was entitled to ride in a chariot within the city (p. 83)—whence originated the privilege subsequently accorded to the
tion.
r90 LAW AND JUSTICE BOOK I
stood his “ messengers ” (lictores), and before him the person accused or the “parties” (ref). No doubt in the case of slaves the decision lay primarily with the master, and in the case of women with the father, husband, or nearest male relative (p. 73); but slaves and women were not primarily reckoned as members of the community. Over sons and grandsons who were in patestate the power of the
pater familias subsisted concurrently with the royal juris diction; that power, however, was not a jurisdiction in the proper sense of the term, but simply a consequence of the father’s inherent right of property in his children. We find no traces of any jurisdiction appertaining to the clans as such, or of any judicature at all that did not derive its authority from the king. As regards the right of self redress and in particular the avenging of blood, we still find perhaps in legends an echo of the original principle that a murderer, or any one who should illegally protect a murderer, might justifiably be slain by the kinsmen of the person murdered ; but these very legends characterize this principle as objectionable,1 and from their statements blood revenge would appear to have been very early suppressed in Rome through the energetic assertion of the authority of the community. In like manner we perceive in the earliest Roman law no trace of that influence which under the oldest Germanic institutions the comrades of the accused
chief magistrate on solemn occasions-and that originally, so long as there was no elevated tribunal, he gave judgment, at the comitium or wherever else he wished, from the chariot-seat.
1 The story of the death of king Tatius, as given by Plutarch (Ram. 23, 24), viz. that kinsmen of Tatius had killed envoys from Laurentum ; that Tatius had refused the complaint of the kinsmen of the slain for redress ; that they then put Tatius to death ; that Romulus acquitted the murderers of Tatius, on the ground that murder had been expiated by murder ; but that, in consequence of the penal judgments of the gods that simultaneously fell upon Rome and Laurentum, the perpetrators of both murders were in the sequel subjected to righteous punishment-this story looks quite like a historical version of the abolition of blood-revenge, just as the introductior of the provocatia lies at the foundation of the myth of the Horatii. Th: versions of the same story that occur elsewhere certainly present con siderable variations, but they seem to be confused or dressed up.
CHAP. xr LAW AND JUSTICE 19!
and the people present were entitled to exercise over the pronouncing of judgment; nor do we find in the former any evidence of the usage so frequent in the latter, by which the mere will and power to maintain a claim with arms in hand were treated as judicially necessary or at any rate admissible.
Judicial procedure took the form of a public or a private Crimes. process, according as the king interposed of his own motion
or only when appealed to by the injured party. The
former course was taken only in cases which involved a
breach of the public peace. First of all, therefore, it was applicable in the case of public treason or communion with
the public enemy (prodz'tzb), and in that of violent rebellion
against the magistracy (perduellia). But the public peace
was also broken by the foul murderer (parrz'cida), the sodomite, the violator of a maiden’s or matron’s chastity,
the incendiary, the false witness, by those, moreover, who
with evil spells conjured away the harvest, or who without
due title cut the corn by night in the field entrusted to the protection of the gods and‘of the people; all of these were therefore dealt with as though they had been guilty of high treason. The king opened and conducted the process, and
sentence after conferring with the senators whom he had called in to advise with him. He was at liberty, however, after he had initiated the process, to commit the further handling and the adjudication of the matter to deputies who were, as a rule, taken from the senate. The later extraordinary deputies, the two men for adjudicating on rebellion (duoviriperduellianis) and the later standing deputies the “trackers of murder” (quaesturc:
parrit-idii), whose primary duty was to search out and arrest murderers, and who therefore exercised in some measure police functions, do not belong to the regal period, but may probably have sprung out of, or been suggested by, certain of its institutions. Imprisonment while the case was
pronounced
Punish ment of offences against order.
Law of private offences.
r92 LAW AND JUSTICE BOOK 1
undergoing investigation was the rule; the accused might, however, be released on bail. Torture to compel confession was only applied to slaves. Every one convicted of having broken the public peace expiated his offence with his life. The modes of inflicting capital punishment were various: the false witness, for example, was hurled from the strong hold-rock; the harvest-thief was hanged; the incendiary was burnt. The king could not grant pardon, for that power was vested in the community alone; but the king might grant or refuse to the condemned permission to appeal for mercy (provocatio). In addition to this, the law recognized an intervention of the gods in favour of the condemned criminal. He who had made a genuflection before the priest of Jupiter might not be scourged on the same day ; any one under fetters who set foot in his house had to be released from his bonds; and the life of a criminal was spared, if on his way to execution he accidentally met one
of the sacred virgins of Vesta.
The king inflicted at his discretion fines payable to the
state for trespasses against order and for police offences; they consisted in a definite number (hence the name multa) of cattle or sheep. It was in his power also to pronounce sentence of scourging.
In all other cases, where the individual alone was in jured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself
before the king. When both parties had appeared and the plaintiff had orally stated his demand, while the defendant had in similar fashion refused to comply with the king might either investigate the cause himself or have dis posed of by deputy acting in his name. The regular form of satisfaction for such an injury was compromise arranged between the injurer and the injured; the state
a
a
it,
it
CHAP- xr LAW AND JUSTICE 193
only interfered supplementarily, when the aggressor did not satisfy the party aggrieved by an adequate expiation (poena), when any one had his property detained or his just demand was not fulfilled.
Under what circumstances during this epoch theft was regarded as at all expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was by the judge assigned as a bondsman to the person from whom he had stolen.
Then.
In cases of damage (im'uria) to person or to property, lnjurlel. where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to
accept compensation; on the other hand, any member
was lost in consequence of the maimed person could demand eye for eye and tooth for tooth.
Since the arable land among the Romans was long Property. cultivated upon the system of joint possession and was not distributed until comparatively late age, the idea of
was primarily associated not with immoveable
property
estate, but with “estate in slaves and cattle”
VOL.
r3
(familia It was not the right of the stronger that was
pemniaque).
regarded as the foundation of title to it; on the contrary, all property was considered as conferred by the community upon the individual burgess for his exclusive possession and use; and therefore was only the burgess, and such as the community accounted in this respect as equal to
burgesses, that were capable of holding property. All
1
it
if,
a
it,
a
r94 LAW AND JUSTICE loo: 1
property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and immoveable estate (from the time that the latter was regarded as private property at all), and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless it was not in the power of the father arbitrarily to deprive his children of their right of inheritance, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In
his lifetime no doubt the father might make dispositions disadvantageous to his children ; for the law was sparing of personal restrictions on the proprietor and allowed, upon the whole, every grown-up man freely to dispose of his
The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardian ship like a lunatic, was probably as ancient as the period when the arable land was first divided and thereby private property generally acquired greater importance for the commonwealth. In this way the two antagonistic principles —the unlimited right of the owner to dispose of his own,
and the preservation of the family property unbroken- were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little
recognized mortgaging; but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were its purchaser, who thereupon gave his word of honour (fidua'a) that he would not alienate the object pledged until the payment fell due, and would restore
it to his debtor when the sum advanced had been repaid.
property.
can. an LAW AND JUSTICE x95
Contracts concluded between the state and a burgess, Conn-ml. particularly the obligation given by those who became
sureties for a payment to the state (prawides, pram’es),
were valid without fiirther formality. On the other hand, contracts between private persons under ordinary circum
stances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor’s word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (mamzjlalio), and of loan A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (mam'zfare), and the buyer at the same time paid to the seller the stipulated
price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person. 1 These condi tions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser
1 The manripatio in its developed form must have been more recent than the Servian reform, as the selection of mancipable objects, which had for its aim the fixing of agricultural property, shows, and as even tradition must have assumed, for it makes Servius the inventor of the balance. But in its origin the mancipalio must be far more ancient ; for it primarily applies only to objects which are acquired by grasping with the hand, and must therefore in its earliest form have belonged to the epoch when property consisted essentially in slaves and cattle (familia pecuniague). The enumeration of those objects which had to be acquired by mann'patio, falls accordingly to be ranked as a Servian innovation; the manu'patio itself. and consequently the use also of the balance and of copper, are older. Beyond doubt manczltafio was originally the universal form of purchase, and occurred in the case of all articles even after the Servian reform ; it was only a misunderstanding of later ages which put upon the rule, that certain articles had to be transferred by manripatio, the con struction that these articles only and no others could be so transferred.
I96 LAW AND JUSTICE 300! I
had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the
of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum. 1 The repayment of the loan took place, when the
time came, with similar forms.
If a debtor to the state did not fulfil his obligations, he
was without further ceremony sold with all that he had ; the simple demand on the part of the state was suflicient to establish the debt. If on the other hand a private person informed the king of any violation of his property
or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (sacramentum) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon
‘ Viz. for the year of ten months one twelfth part of the capital (acacia), which amounts to B; per cent for the year of ten, and 10 per oent for the year of twelve, months.
obligation
(nexum)
(m'ndidae),
CHAP- XI LAW AND JUSTICE 197
the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the
, debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution “by laying on of hands” (mama im'ectio) ; the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend him self; a third person might indeed intercede for him and represent this act of violence as unwarranted (vindex), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in
the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave (p. 131). Thus the Roman community protected every man’s estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.
Protection was in like manner provided for the estate ‘Gandhi P‘
Law of in heritance.
198 LAW AND JUSTICE BOOK I
of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.
After a man’s death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship-women included-shared alike, and the widow along with her children was admitted to her pro portional share. A dispensation from the legal order of succession could only be granted by the assembly of the people ; previous to which the consent of the priests had to
be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the com pletely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.
Manumission was unknown to the law of very early times. The owner might indeed refrain from exercising his proprietary rights; but this did not cancel the existing impossibility of master and slave coming under mutual obligations; still less did it enable the slave to acquire, in relation to the community, the rights of a guest or of a burgess. Accordingly manumission must have been at first simply de facto, not de jure; and the master cannot have been debarred from the possibility of again at pleasure treating the freedman as a slave. But there was a departure from this principle in cases where the master came under obligation not merely towards the slave, but towards the community, to leave him in possession of freedom. There was no special legal form, however, for thus binding the
Manu mission.
can. x1 LAW AND JUSTICE X99
master-the best proof that there was at first no such thing as a manumission,—but those methods were employed for this object which the law otherwise presented, testament, action, or census. If the master had either declared his slave free when executing his last will in the assembly of the people, or had allowed his slave to claim freedom in his own presence before a judge or to get his name inscribed in the valuation-roll, the freedman was regarded not indeed as a burgess, but as personally free in relation to his former master and his heirs, and was accordingly looked upon at first as a client, and in later times as a plebeian
110). The emancipation of son encountered greater difli
culties than that of slave; for while the relation of master to slave was accidental and therefore capable of being dissolved at will, the father could never cease to be father. Accordingly in later times the son was obliged, in order to get free from the father, first to enter into slavery and then to be set free out of this latter state but in the period now before us no emancipation of sons can have as yet existed.
Such were the laws under which burgesses and clients Clients and lived in Rome. Between these two classes, so far as we foreigner! can see, there subsisted from the beginning complete
equality of private rights. The foreigner on the other
hand, he had not submitted to Roman patron and
thus lived as client, was beyond the pale of the law both
in person and in property. Whatever the Roman burgess
took from him was as rightfully acquired as was the shell
fish, belonging to nobody, which was picked up by the sea-shore; but the case of ground lying beyond the
Roman bounds, while the Roman burgess might take
practical possession, he could not be regarded as in legal
sense its proprietor; for the individual burgess was not
entitled to advance the bounds of the community. The
case was different in war: whatever the soldier who was
a
a in
if
a
;
a
a
(p.
200 LAW AND JUSTICE 800! I
fighting in the ranks of the levy gained, whether moveable or immoveable property, fell not to him, but to the state, and accordingly here too it depended upon the state whether it would advance or contract its bounds.
Exceptions from these general rules were created by special state-treaties, which secured certain rights to the members of foreign communities within the Roman state. In particular, the perpetual league between Rome and Latium declared all contracts between Romans and Latins to be valid in law, and at the same time instituted in their case an accelerated civil process before sworn “ recoverers ”
As, contrary to Roman usage, which in other instances committed the decision to a single judge,
these always sat in plural number and that number un even, they are probably to be conceived as a court for the cognizance of commercial dealings, composed of arbiters from both nations and an umpire. They sat in judgment at the place where the contract was entered into, and were obliged to have the process terminated at latest in ten days. The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians ; for the manafatio and the nexum were origin ally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.
Dealings with countries strictly foreign were carried on in a different fashion and by means of other forms. In very early times treaties as to commerce and legal redress must have been entered into with the Caerites and other friendly peoples, and must have formed the basis of the international private law (ius gmt‘ium), which gradually became developed in Rome alongside of the law of the land. An indication of the formation of such a law is found in the remarkable mutuum, “the exchange"
(rea'peratores).
(from
CRAP. XI LAW AND JUSTICE 80!
mufare like dziw'ziuus)—a form of loan, which was not based like the nexum upon a binding declaration of the debtor expressly emitted before witnesses, but upon the mere transit of the money from one hand to another, and which as evidently originated in dealings with foreigners as the nexum in business dealings at home. It is accordingly a significant fact that the word reappears in Sicilian Greek as poi-rev ; and with this is to be connected the reappearance of the Latin can-er in the Sicilian Kofpxapov. Since it is philologically certain that both words were originally Latin, their occurrence in the local dialect of Sicily becomes an important testimony to the frequency of the dealings of Latin traders in the island, which led to their borrowing money there and becoming liable to that imprisonment for debt, which was everywhere in the earlier systems of law the consequence of the non-repayment of a loan. Conversely, the name of the Syracusan prison, “ stone-quarries ” or Mropfar, was transferred at an early period to the enlarged Roman state-prison, the lautumiae.
We have derived our outline of these institutions mainly
from the earliest record of the Roman common law prepared of the
about half a century after the abolition of the monarchy;
and their existence in the regal period, while doubtful
haps as to particular points of detail, cannot be doubted in the main. Surveying them as a whole, we recognize the law of a far-advanced agricultural and mercantile city, marked alike by its liberality and its consistency. In its case the conventional language of symbols, such as ag. the Ger manic laws exhibit, has already quite disappeared. There is no doubt that such a symbolic language must have existed at one time among the Italians. Remarkable instances of it are to be found in the form of searching a house, wherein the searcher must, according to the Roman as well as the Germanic custom, appear without upper garment merely in his shirt; and especially in the primitive Latin formula
Roman law.
per
no2 LAW AND JUSTICE nooK 1
for declaring war, in which we meet with two symbols occurring at least also among the Celts and the Germans— the “pure herb” (Iurba para, Franconian :lzrzne c/zrua'a) as a symbol of the native soil, and the singed bloody staff as a sign of commencing war. But with a few exceptions, in which reasons of religion protected the ancient usages
to which class the confarreatz'o as well as the declaration of war by the college of Fetiales belonged —the Roman law, as we know uniformly and on principle rejects the symbol, and requires in all cases neither more nor less than the full and pure expression of will. The delivery of an article, the summons to bear witness, the conclusion of marriage, were complete as soon as the parties had in an
intelligible
manner declared their purpose; was usual,
indeed, to deliver the article into the hand of the new
owner, to pull the person summoned as witness by the
ear, to veil the bride’s head and to lead her in solemn
procession to her husband’s house; but all these primitive
practices were already, under the oldest national law of the
Romans, customs legally worthless. In way entirely
analogous to the setting aside of allegory and along with
of personification in religion, every sort of symbolism was
on principle expelled from their law. In like manner that earliest state of things presented to us by the Hellenic as well as the Germanic institutions, wherein the power of the community still contends with the authority of the smaller associations of clans or cantons that are merged in in Roman law wholly superseded there no alliance for the vindication of rights within the state, to supplement the state's imperfect aid, by mutual offence and defence; nor
there any serious trace of vengeance for bloodshed, or of the family property restricting the individual’s power of dis posal. Such institutions must probably at one time have existed among the Italians traces of them may perhaps be found in particular institutions of ritual, ag. in the expiatory
;
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;
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it, is
it
a
a
it
it,
cnar. xi LAW AND JUSTICE :03
goat, which the involuntary homicide was obliged to give to the nearest of kin to the slain ; but even at the earliest period of Rome which we can conceive this stage had long been transcended. The clan and the family doubtless were
not annihilated in the Roman community; but the theoretical as well as the practical omnipotence of the state in its own sphere was no more limited by them than by the freedom which the state granted and guaranteed to the burgess. The ultimate foundation of law was in all cases
the state; freedom was simply another expression for the right of citizenship in its widest sense; all property was based on express or tacit transference by the community to the individual ; a contract was valid only so far as the com munity by its representatives attested testament only so far as the community confirmed The provinces of public and private law were definitely and clearly discrimi
nated: the former having reference to crimes against the state, which immediately called for the judgment of the state and always involved capital punishment; the latter having reference to offences against fellow-burgess or guest, which were mainly disposed of in the way of com promise by expiation or satisfaction made to the party injured, and were never punished with the forfeit of life, but, at most, with the loss of freedom. The greatest liberality in the permission of commerce and the most rigorous procedure in execution went hand in hand; just as in commercial states at the present day the universal right to draw bills of exchange appears in conjunction with
a strict procedure in regard to them. The burgess and the client stood in their dealings on footing of entire equality; state-treaties conceded comprehensive equality of rights also to the guest; women were placed completely on level in point of legal capacity with men, although restricted in action; the boy had scarcely grown up when he received at once the most comprehensive powers in the
a
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a a it it, a
a
I04 LAW AND JUSTICE Booxr
disposal of his estate, and every one who could dispose at all was as sovereign in his own sphere as was the state in public affairs. A feature eminently characteristic was the system of credit. There did not exist any credit on landed security, but instead of a debt on mortgage the step which constitutes at present the final stage in mortgage-procedure —the delivery of the property from the debtor to the creditor-took place at once. On the other hand personal credit was guaranteed in the most summary, not to say ex travagant fashion; for the lawgiver entitled the creditor to treat his insolvent debtor like a thief, and granted to him in entire legislative earnest what Shylock, half in jest, stipu lated for from his mortal enemy, guarding indeed by special clauses the point as to the cutting ofi” too much more carefully than did the Jew. The law could not have more clearly expressed its design, which was to establish at once an independent agriculture free of debt and a mercantile credit, and to suppress with stringent energy all merely nominal ownership and all breaches of fidelity. If we further take into consideration the right of settlement recognized at an early date as belonging to all the Latins (p. 132), and the validity which was likewise early pro nounced to belong to civil marriage (p. 112), we shall perceive that this state, which made the highest demands on its burgesses and carried the idea of subordinating the individual to the interest of the whole further than any state before or since has done, only did and only could do so
by itself removing the barriers to intercourse and unshackling liberty quite as much as it subjected it to restriction. In permission or in prohibition the law was always absolute. As the foreigner who had none to intercede for him was like the hunted deer, so the guest was on a footing of equality with the burgess. A contract did not ordinarily furnish a ground of action, but where the right of the creditor was acknowledged, it was so all-powerful that there
CHAP- xr LAW AND JUSTICE m5
was no deliverance for the poor debtor, and no humane or equitable consideration was shown towards him. It seemed as if the law found a pleasure in presenting on all sides its sharpest spikes, in drawing the most extreme consequences, in forcibly obtruding on the bluntest understanding the tyrannic nature of the idea of right. The poetical form and
the genial symbolism, which so pleasingly prevail in the Germanic legal ordinances, were foreign to the Roman ; in his law all was clear and precise; no symbol was employed, no institution was superfluous. It was not cruel ; everything necessary was performed without much ceremony, even the punishment of death ; that a free man could not be tortured was a primitive maxim of Roman law, to obtain which other peoples have had to struggle for thousands of years. Yet this law was frightful in its inexorable severity, which we cannot suppose to have been very greatly mitigated by
humanity in practice, for it was really the law of the people ; more terrible than Venetian fl'ombi and chambers of torture was that series of living entombments which the poor man saw yawning before him in the debtors’ towers of the rich. But the greatness of Rome was involved in, and was based upon, the fact that the Roman people ordained for itself and endured a system of law, in which the eternal principles of freedom and of subordination, of property and of legal redress, reigned and still at the present day reign unadul terated and unmodified.
Roman religion.