The Roman legislation was in a twofold manner the child of philosophy. It was in the first place itself formed upon the philosophical model, for, instead of being a mere empirical system adjusted to the existing requirements of society, it laid down abstract principles of right to which it endeavoured to conform;[553] and, in the next place, these principles were borrowed directly from Stoicism. The prominence the sect had acquired among Roman moralists, its active intervention in public affairs, and also the precision and brevity of its phraseology, had recommended it to the lawyers,[554] and the [pg 297] union then effected between the legal and philosophical spirit is felt to the present day. To the Stoics and the Roman lawyers is mainly due the clear recognition of the existence of a law of nature above and beyond all human enactments which has been the basis of the best moral and of the most influential though most chimerical political speculation of later ages, and the renewed study of Roman law was an important element in the revival that preceded the Reformation.
It is not necessary for my present purpose to follow into very minute detail the application of these principles to practical legislation. It is sufficient to say, that there were few departments into which the catholic and humane principles of Stoicism were not in some degree carried. In the political world, as we have already seen, the right of Roman citizenship, with the protection and the legal privileges attached to it, from being the monopoly of a small class, was gradually but very widely diffused. In the domestic sphere, the power which the old laws had given to the father of the family, though not destroyed, was greatly abridged, and an important innovation, which is well worthy of a brief notice, was thus introduced into the social system of the Empire.
It is probable that in the chronology of morals, domestic virtue takes the precedence of all others; but in its earliest phase it consists of a single article—the duty of absolute submission to the head of the household. It is only at a later period, and when the affections have been in some degree evoked, that the reciprocity of duty is felt, and the whole tendency of civilisation is to diminish the disparity between the different members of the family. The process by which the wife from a simple slave becomes the companion and [pg 298] equal of her husband, I shall endeavour to trace in a future chapter. The relations of the father to his children are profoundly modified by the new position the affections assume in education, which in a rude nation rests chiefly upon authority, but in a civilised community upon sympathy. In Rome the absolute authority of the head of the family was the centre and archetype of that whole system of discipline and subordination which it was the object of the legislator to sustain. Filial reverence was enforced as the first of duties. It is the one virtue which Virgil attributed in any remarkable degree to the founder of the race. The marks of external respect paid to old men were scarcely less than in Sparta.[555] It was the boast of the lawyers that in no other nation had the parent so great an authority over his children.[556] The child was indeed the absolute slave of his father, who had a right at any time to take away his life and dispose of his entire property. He could look to no time during the life of his father in which he would be freed from the thraldom. The man of fifty, the consul, the general, or the tribune, was in this respect in the same position as the infant, and might at any moment be deprived of all the earnings of his labour, driven to the most menial employments, or even put to death, by the paternal command.[557]
There can, I think, be little question that this law, at least in the latter period of its existence, defeated its own [pg 299] object. There are few errors of education to which more unhappy homes may be traced than this—that parents have sought to command the obedience, before they have sought to win the confidence, of their children. This was the path which the Roman legislator indicated to the parent, and its natural consequence was to chill the sympathies and arouse the resentment of the young. Of all the forms of virtue filial affection is perhaps that which appears most rarely in Roman history. In the plays of Plautus it is treated much as conjugal fidelity was treated in England by the playwriters of the Restoration. An historian of the reign of Tiberius has remarked that the civil wars were equally remarkable for the many examples they supplied of the devotion of wives to their husbands, of the devotion of slaves to their masters, and of the treachery or indifference of sons to their fathers.[558]
The reforms that were effected during the pagan empire did not reconstruct the family, but they at least greatly mitigated its despotism. The profound change of feeling that had taken place on the subject is shown by the contrast between the respectful, though somewhat shrinking, acquiescence, with which the ancient Romans regarded parents who had put their children to death,[559] and the indignation excited under Augustus by the act of Erixo. Hadrian, apparently by a stretch of despotic power, banished a man who had assassinated his son.[560] Infanticide was forbidden, though [pg 300] not seriously repressed, but the right of putting to death an adult child had long been obsolete, when Alexander Severus formally withdrew it from the father. The property of children was also in some slight degree protected. A few instances are recorded of wills that were annulled because they had disinherited legitimate sons,[561] and Hadrian, following a policy that had been feebly initiated by his two predecessors, gave the son an absolute possession of whatever he might gain in the military service. Diocletian rendered the sale of children by the fathers, in all cases, illegal.[562]
In the field of slavery the legislative reforms were more important. This institution, indeed, is one that meets us at every turn of the moral history of Rome, and on two separate occasions in the present chapter I have already had occasion to notice it. I have shown that the great prominence of the slave element in Roman life was one of the causes of the enlargement of sympathies that characterises the philosophy of the Empire, and also that slavery was in a very high degree, and in several distinct ways, a cause of the corruption of the free classes. In considering the condition of the slaves themselves, we may distinguish, I think, three periods. In the earlier and simpler days of the Republic, the head of the family was absolute master of his slaves, but circumstances in a great measure mitigated the evil of the despotism. The slaves were very few in number. Each Roman proprietor had commonly one or two who assisted him in cultivating the soil, and superintended his property when he was absent in the army. In the frugal habits of the time, the master was brought into the most intimate connection with his [pg 301] slaves. He shared their labours and their food, and the control he exercised over them, in most cases probably differed little from that which he exercised over his sons. Under such circumstances, great barbarity to slaves, though always possible, was not likely to be common, and the protection of religion was added to the force of habit. Hercules, the god of labour, was the special patron of slaves. There was a legend that Sparta had once been nearly destroyed by an earthquake sent by Neptune to avenge the treacherous murder of some Helots.[563] In Rome, it was said, Jupiter had once in a dream commissioned a man to express to the senate the divine anger at the cruel treatment of a slave during the public games.[564] By the pontifical law, slaves were exempted from field labours on the religious festivals.[565] The Saturnalia and Matronalia, which were especially intended for their benefit, were the most popular holidays in Rome, and on these occasions the slaves were accustomed to sit at the same table with their masters.[566]
Even at this time, however, it is probable that great atrocities were occasionally committed. Everything was permitted by law, although it is probable that the censor in cases of extreme abuse might interfere, and the aristocratic feelings of the early Roman, though corrected in a measure by the associations of daily labour, sometimes broke out in a fierce scorn for all classes but his own. The elder Cato, who may be regarded as a type of the Romans of the earlier period, speaks of slaves simply as instruments for obtaining wealth, and he encouraged masters, both by his precept and his example, to sell them as useless when aged and infirm.[567]
In the second period, the condition of slaves had greatly deteriorated. The victories of Rome, especially in the East, had introduced into the city innumerable slaves[568] and the wildest luxury, and the despotism of the master remained unqualified by law, while the habits of life that had originally mitigated it had disappeared. The religious sentiments of the people were at the same time fatally impaired, and many new causes conspired to aggravate the evil. The passion for gladiatorial shows had begun, and it continually produced a savage indifference to the infliction of pain. The servile wars of Sicily, and the still more formidable revolt of Spartacus, had shaken Italy to the centre, and the shock was felt in every household. “As many enemies as slaves,” had become a Roman proverb. The fierce struggles of barbarian captives were repaid by fearful punishments, and many thousands of revolted slaves perished on the cross. An atrocious law, intended to secure the safety of the citizens, provided that if a master were murdered, all the slaves in his house, who were not in chains or absolutely helpless through illness, should be put to death.[569]
Numerous acts of the most odious barbarity were committed. The well-known anecdotes of Flaminius ordering a slave to be killed to gratify, by the spectacle, the curiosity of [pg 303] a guest; of Vedius Pollio feeding his fish on the flesh of slaves; and of Augustus sentencing a slave, who had killed and eaten a favourite quail, to crucifixion, are the extreme examples that are recorded; for we need not regard as an historical fact the famous picture in Juvenal of a Roman lady, in a moment of caprice, ordering her unoffending servant to be crucified. We have, however, many other very horrible glimpses of slave life at the close of the Republic and in the early days of the Empire. The marriage of slaves was entirely unrecognised by law, and in their case the words adultery, incest, or polygamy had no legal meaning. Their testimony was in general only received in the law-courts when they were under torture. When executed for a crime, their deaths were of a most hideous kind. The ergastula, or private prisons, of the masters were frequently their only sleeping-places. Old and infirm slaves were constantly exposed to perish on an island of the Tiber. We read of slaves chained as porters to the doors, and cultivating the fields in chains. Ovid and Juvenal describe the fierce Roman ladies tearing their servants' faces, and thrusting the long pins of their brooches into their flesh. The master, at the close of the Republic, had full power to sell his slave as a gladiator, or as a combatant with wild beasts.[570]
All this is very horrible, but it must not be forgotten that there was another side to the picture. It is the custom of many ecclesiastical writers to paint the pagan society of the Empire as a kind of pandemonium, and with this object they collect the facts I have cited, which are for the most part narrated by Roman satirists or historians, as examples of the most extreme and revolting cruelty; they represent them as fair specimens of the ordinary treatment of the servile class, and they simply exclude from their consideration [pg 304] the many qualifying facts that might be alleged. Although the marriage of a slave was not legally recognised, it was sanctioned by custom, and it does not appear to have been common to separate his family.[571] Two customs to which I have already referred distinguish ancient slavery broadly from that of modern times. The peculium, or private property of slaves, was freely recognised by masters, to whom, however, after the death of the slave, part or all of it usually reverted,[572] though some masters permitted their slaves to dispose of it by will.[573] The enfranchisement of slaves was also carried on to such an extent as seriously to affect the population of the city. It appears from a passage in Cicero that an industrious and well-conducted captive might commonly look forward to his freedom in six years.[574] Isolated acts of great cruelty undoubtedly occurred; but public opinion strongly reprehended them, and Seneca assures us that masters who ill-treated their slaves were pointed at and insulted in the streets.[575] The slave was not necessarily the degraded being he has since appeared. The physician who tended the Roman in his sickness, the tutor to whom he confided the education of his son, the artists whose works commanded the admiration of the city, were usually slaves. Slaves sometimes mixed with their masters in the family, ate habitually with them at the same table,[576] and were regarded by them with the warmest affection. Tiro, the slave and afterwards the freedman of Cicero, compiled his master's letters, and has preserved some in which Cicero addressed [pg 305] him in terms of the most sincere and delicate friendship. I have already referred to the letter in which the younger Pliny poured out his deep sorrow for the death of some of his slaves, and endeavoured to console himself with the thought that as he had emancipated them before their death, at least they had died free.[577] Epictetus passed at once from slavery to the friendship of an emperor.[578] The great multiplication of slaves, though it removed them from the sympathy of their masters, must at least have in most cases alleviated their burdens. The application of torture to slave witnesses, horrible as it was, was a matter of rare occurrence, and was carefully restricted by law.[579] Much vice was undoubtedly fostered, but yet the annals of the civil wars and of the Empire are crowded with the most splendid instances of the fidelity of slaves. In many cases they refused the boon of liberty and defied the most horrible tortures rather than betray their masters, accompanied them in their flight when all others had abandoned them, displayed undaunted courage and untiring ingenuity in rescuing them from danger, and in some cases saved the lives of their owners by the deliberate sacrifice of their own.[580] This was, indeed, for some time the pre-eminent virtue of Rome, and it proves conclusively that the masters were not so tyrannical, and that the slaves were not so degraded, as is sometimes alleged.