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Roman Law


Julius Caesar by Andrea di Pietro di Marco Ferrucci, ca. 1512

9,042 words

The following is the complete text of the second chapter of The Foundations of the Nineteenth Century, vol. I, originally published in 1899, which was translated from the German by John Lees in 1910 and revised in 1912. The original Cyrillic Greek words for “Spartans” and “Acheans” have not been included. The text was provided by A. E. Stern.


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 every one 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 he will see how the Indo-European races,[1] [2] 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 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 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 every one desiring permanently to establish his own personal right, the Law by every one 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 define conditions of life. He cannot, however, fail to note that State and Law — both creations of this “born nation of lawyers”[2] [3] — 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 the 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 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 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 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 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 that 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] [4] 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, 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 Rome. From Alexander to Napoleon, one can hardly over-estimate the power of criminal obstinancy 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-division 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 the 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] [5] 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 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 be surpassed by Napoleon, under equally favorable conditions — and withal he had the inestimable advantage of not being 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 erred far from the plumb-line of what suited his nation. And yet it is this very man and no other who bent the rough tree 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] [6] 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 have soon 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 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 to his heart than his own life;[6] [7] 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] [8] At 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 servants of the Fatherland, as had been Roman custom hithero!

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 studies 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] [9] This from a certain viewpoint is correct; but the investigation 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 apply 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 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 the 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 Athenian genius unfolded itself at the blossom, here it did so in the trunk and 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, 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, and fewer blossoms, but the trunk was incomparably strong; by its support later nations raised themselves aloft. The poet and 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] [10] The people were right; the best statesman for Rome was he who did not move one’s hair-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 one 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 here is “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; on the other hand, our Roman Commonwealth is not founded 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 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 Romans conquered the world.


The question here forces itself upon us: is it at all admissible to apply the term conquerers to the Romans? I scarcely think so. The Teutonic peoples, the Arabians and the Turks were conquerers; 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 the earth — not particularly healthy nor uncommonly rich — by the 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 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 disregarded, viz., that the unexampled 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] [11] 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 able to construct anything, to organise anything, or to found a State?[11] [12] 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] [13] 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 the 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] [14] and thereby swept entirely aside the interference of mothers-in-law 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 the 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 if it should 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, 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 results 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.


Mommsen tells (i. 321) of the alliance between the Babylonians and the Phoenicians to subdue Greece and Italy, and is of the 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 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 under a whole 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] [15]; their own splendid “Roman law” they generously make accessible to ever-increasing numbers, and they at the same time unite the various foreign legal systems, taking the Roman as a basis, in order to gradually to evolve therefrom a “universal international law.”[15] [16] This is surely not how robbers act. Here we have rather to recognise the first steps towards the pertinent establishment of Indo-European ideals of freedom and civilisation.

Livy says with justice: “It was not only by our weapons but 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 on 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 if such situation 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 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] [17], 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 call to-day Europe could have never arisen. Once more I refer to the learned works on the Phoenicians, but above all, because available to every one, to the splendid summary in Mommsen’s Römische Geschichte, Book III. chap i., “Carthage.”


[1] [18] In another place I shall have to refer to the difficult question of races (see chap. iv.). Here I shall 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 measuring 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] [19] Jhering: Entwickelungsgeschichte des römischen 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 Indoeuropäer (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 sorroundings, so that the Aryan, if transferred to Mesopotamia, would eo ipso 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] [20] Cf. Savigny: Geschichte des römischen Rechtes im Mittelalter, chap. i.

[4] [21] 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 Lacedaemania, 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 Acheans engaged in trade and industry, and the Dorians (Spartiatae) waged war and in consequence ruled, that was no artificial division of labor but the confirmation of a relationship actually existing. I am also convinced that life was in Lacedaemonia for a long time happier than in any other part of Greece; slave-trade was forbidden, the Helots were hereditary tenants, and though not bedded on roses they enjoyed considerable independence; the Acheans had freedom to move about, even their limited military service being frequently relaxed in the interest of their industries, which were hereditary in the various families; for the Spartiatae, finally, social intercourse was the principle of their whole life, and in the rooms where they met at their simple meals, there stood resplendent one single statue as protecting deity, that of the god of laughter. (Plutarch, Lycurgus, xxxvii.) Lycurgus, however, lays himself open to the reproach that he tried to fix these existing and so far sound conditions, and thus robbed the living organism of its necessary elasticity; secondly, that on the substantial and strong foundation he erected a very fantastic structure. Here again we see the theorising politician, the man who tries to decide by way of reasoning how things must be, while as a matter of fact the function of logical reason is to record and not to create. But to the fact that Lycurgus, in spite of everything, took historical data as his starting-point, are due that strength and endurance which his constitution enjoyed above the rest of Greece.

[5] [22] The expression “Aristocrats 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 Pöbel (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 anonymous 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” (Letter to Caesar, i. 5); we also see the Plebeians from earlier 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 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 the Patricians (see Mommsen: Abriss des römischen Staatrechtes, 1893, p.258; and Esmarch: Römische Rechtsgeschichte, 3rd ed., p. 28 ff.).

[6] [23] Civil War, i. 9. Thoroughly Roman, by the way, to use such a commonplace expression for such a time!

[7] [24] Second Letter to Caesar

[8] [25] Ideen zur Geschichte der Menschheit, Bk XIV.

[9] [26] Mommsen: Römische Geschichte, 8th ed., i. 24

[10] [27] For the Aryan peoples in particular, see Leist’s excellent Gräco-italienische Rechtsgeschite (1884) and his Altarisches Jus civile (1896), also Jhering’s Vorgeschichte der Indoeuropäer. The ethical 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 dogma 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 of 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 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, Gräco-ital. Rechtsgeschichte p.58); that supposition therefore lacks a 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 stage of culture without exception” (p.42). Exact proofs are yet 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 Schurz, in his Altersklassen und Männerbunde, 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 contempt 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 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 incredibly 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 they ever 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 b and 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 a 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 Austrialian 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 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] [28] Thierry, Mommsen, &c.

[12] [29] 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 tradition 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 Estruscan, Sabine, Hellenic, and unfortunately even Pelasgic ruins” (Rôm. 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 Sebellian 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 Halicarnassus (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 can become!

[13] [30] 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] [31] One of the last instances are the Jews who (about 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] [32] Esmarch, in his Römische Rechtsgeschichte, 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 nations known to the Romans, nor as an objectively existing commercial law rocognised 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] [33] 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 gone a remarkable moral change by contact with Semitic masters; they have become cannibals, great stupid children changed into 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.66 ff., 184 ff., &c.)