(Read Mommsen 1.11 online.)
Mommsen gets poetic again, but first informs us that ‘the doings and dealings, the thoughts and imaginings of the individual … have no part in history.’ I suspect he means the individual Roman as a type as opposed to the ‘great men,’ who are the usual subjects of of traditional history. He will treat of daily life (i.e., culture) in these shadowy times ‘only in the most general outlines.’ It will take him 115 pages.
But now for the poetry, of which the first part could have written of much of the first ten chapters:
Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difficulty we recognize to have once been green.
While the second part gives an outline of the remainder of the book:
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.
From the first the Romans seem modern, and this is best illustrated by a list of things lacking in their culture that seem to have been the common inheritance of their Indo-European ancestors:
- 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
- numerous phenomena of a kindred character
I’m not sure what he means by all of this, but the status of women is probably the most interesting item on the list, and while not modern in our time, it was in Mommsen’s.
He places jurisdiction solely in the hands of the king, who could pass responsibilities to his deputies, and tells us that legal proceedings were public when the offense touched on the community or violated the state. Besides parricide and treason, such crimes as rape were considered violations of the community. Private matters were dealt with more in the manner of an arbitration. Penalties ran the gamut, but were based on the crime and one’s ability to repay the offended. Despite his earlier claim that blood vengeance was not found among the Romans, Mommsen tells us that ‘the maimed person could demand eye for eye and tooth for tooth.’
An interesting notion arises in consideration of property, namely that the Romans originally counted property in terms of cattle and slaves (familia pecuniaque), and only late developed the concept of ‘immovable property,’ i.e., land.
He has a few words on the nature of legal contracts and the ways in which the Romans danced around the issue of loans, mortgage, and debt, culminating into the slavery of debtors who could not pay (their slavery effected by banishment).
Women, children, and the mentally ill required guardians to watch over their property, and each had a share in the inheritance of a husband or father. Freed slaves originally had no legal claim to freedom or citizenship, but became clients of their former masters.
Foreigners not attached to a Roman patron had neither rights nor protections. He was like ‘the shell-fish, belonging to nobody, which was picked up by the sea-shore.’ The Romans dealt with Latins as the patricians would with plebeians, but a kind of international private law developed over time, and evidence is found in certain technical terms shared by the Romans and Sicilian Greeks.
These, Mommsen says, are the rough outlines of ‘the law of a far-advanced agricultural and mercantile city, marked alike by its liberalism and consistency.’ He returns to the notion of ‘symbolism’ hinted at earlier, and cites symbolic superstitions that seemed common to other civilizations in various legal contexts, but existed in a stylized religious way (if at all) at Rome. Instead, he argues, Roman law was more concrete and straightforward. He says there was no ‘serious trace of vengeance for bloodshed,’ even if there was a trace. He sees a remarkable level of equality for citizens and non-citizens under the law (though one wonders how he defines equality). He believes that the Roman law on debt (which he says granted what Shakespeare’s Shylock requested in jest) was designed to discourage debt.
Moderns will especially be interested in what he says about torture:
[T]hat 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. But that law was frightful in its inexorable severity, which we cannot suppose to have been very greatly mitigated by humanity in practice, for it was indeed national law—more terrible than roofs of lead 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.
Torture or debt? Given the choice, I’ll take debt, and be glad it’s not on Rome’s terms.