5.—Rise of the State.—Dissolution of the Gens in Rome.
After the dissolution of the matriarchal gens, the patriarchal gens took its place with considerably diminished functions. The chief function of the patriarchal gens was the strict observation of common religious and funeral rites and mutual aid and protection. It entailed the right, and sometimes the duty, to marry within the gens; the latter being the case especially in regard to rich heiresses and orphans. The gens also controlled all the remaining common property.
With the rise of private property and the right of inheritance connected with it, class distinctions and class antagonism came into existence. In the course of time the propertied members made common cause against the propertyless ones. The former sought to gain control of the administrative positions and to make them hereditary. Finance had become a necessity and entailed conditions of indebtedness that had previously been unknown. Struggles against external enemies, internal conflicts of interest, and the varied interests and relations created by agriculture, industry and trade, necessitated a complicated system of laws and the formation of public bodies destined to keep the social machine in orderly motion and to settle disputes. The same was true concerning the relations of masters and slaves, debtors and creditors. Thus a power was needed to control all these relations, to conduct, regulate, arbitrate, protect and punish. The state came into existence as a necessary product of the new social order based on conflicting interests. Its direction naturally was assumed by those who had the greatest interest in its founding and who, thanks to their social power, were most influential: the propertied classes. Thus aristocracy of wealth and democracy opposed one another, even where complete equality of political rights was maintained.
During the old matriarchal system no written law existed. Conditions were simple and custom was hallowed. In the new, far more complicated order, written law became one of the urgent necessities and special officials were needed for its administration. But as the legal relations became more and more complicated, a special class of persons arose, devoted exclusively to the study of law and having a special interest in still further complicating them. The jurists, the lawyers, came into existence, and owing to the importance of the law to the body social, they soon became one of the most influential estates. The new civic jurisprudence in the course of time found its most classic expression in the Roman state, that explains the influence exerted by Roman law down to the present time.
We see then that the state organization is the natural outcome of a society divided into a great variety of occupations and having varied, frequently opposing and contending, interests. An inevitable result was oppression of the weaker members. This truth was recognized by the Nabataeans, an Arabian tribe, who, according to Diodorus, issued the command neither to sow nor to plant, to drink no wine, and to build no houses, but to live in tents, for if they did all these things they might be compelled to obey by a superior power (the state). Among the Rechabites, the descendants of the father-in-law of Moses, we find similar decrees.[23] In fact, Mosaic law is framed in a manner destined to prevent the Jews from developing beyond the stage of an agricultural society, because their lawmakers feared that it might bring about the downfall of their democratic, communistic organization. For the same reasons the “holy land” was selected in a territory that was bounded on the one side by a mountain range which was difficult of access, the Libanon, and on the other, especially in the East and South, by barren lands and a desert, making isolation possible. For the same reasons, moreover, the Jews were kept at a distance from the sea, which is favorable to commerce, colonization and the acquirement of wealth. For the same reasons there were strict laws forbidding mingling and intermarriage with other nations; and the poor laws, the agrarian laws, the year of jubilee, all were institutions destined to prevent the acquirement of great fortunes by individuals. The Jews were to be prevented from becoming a state-forming nation. That is why the old gentile constitution founded on tribal organization was maintained by them until their dissolution, and has left its traces among them even to-day.
Apparently the Latin tribes who participated in the foundation of Rome had already superseded the matriarchal development. As previously stated, they robbed the women who were wanting among them from the tribe of the Sabines and called themselves Quirites after these. At a much later date the Roman citizens in the popular assembly were still addressed as Quirites. “Populus Romanus” designated the free population of Rome generally; but “populus Romanus quiritium” designated Roman citizenship by descent. The Roman gens was patriarchal; the children inherited from their natural parent. In case there were no children the property fell to relatives on the man’s side, and if these were wanting, it fell to the gens. By marriage the woman lost all rights of inheritance to her father’s property and that of her father’s brothers. She withdrew from her gens, and thus neither she nor her children could inherit from her father or his brothers. Otherwise the hereditary portion would have been lost to the paternal gens. The division into gentes and phratries for centuries remained the foundation of military organization and the enactment of civic rights. But with the decay of the patriarchal gentes and the decline of their significance, conditions became more favorable to Roman women. They not only obtained the right of inheritance, they also obtained the right to control their own fortunes; they accordingly held a far more favorable position than their Greek sisters. This freer position gradually won by them, gave the elder Cato—born 234 B. C.—cause for the following complaint: “If the head of each family, following the example of his ancestors, would seek to maintain his wife in proper submissiveness, the entire sex would not give so much trouble publicly.” When a few tribunes in the year 195 B. C., moved to repeal a law enacted previously, for the purpose of restricting the luxury of women in dress and personal adornment, he stormed: “If each of us had maintained his manly authority with his own wife, we would have less bother here with all the women. Our power that has been shattered in the home, now is being broken and trampled upon in the forum too by the unruliness of women, and because we are incapable of resisting them individually, we fear them all together. Our ancestors decided that women should not even attend to their private affairs without the control of a guardian, that they should be subject to their fathers, brothers, husbands. But we submit to it that they take possession of the republic and interfere with the popular assembly. If you give free reign to the imperious natures of these unruly creatures, do not imagine that they will recognize any limits of their tyranny. The truth is that they desire freedom, nay, dissoluteness, in all things, and when they have begun to be our equals, they will soon be our superiors.”
At the time Cato delivered this speech the father was guardian to his daughter during his lifetime, even when she was married, unless he appointed another guardian. When the father died the nearest male relative assumed the guardianship. The guardian had the right to transfer this guardianship to whomever and whenever he pleased. Originally then the Roman woman had no will of her own before the law.
The forms of marriage ceremonies were varied and underwent many changes in the course of the centuries. The most ceremonious marriage ceremony was performed by the high priest in the presence of at least ten witnesses, whereupon the bridal pair ate a cake made of flour, salt and water as a symbol of their union. This ceremony has a strong resemblance to the eating of the sacramental wafer at the celebration of the Lord’s Supper. A second form of marriage was merely by taking possession. If a woman had lived with her chosen husband under the same roof for one year, with the consent of her father or guardian, the marriage was legalized. A third form was a sort of mutual purchase. The man and woman exchanged some coins and promised to be husband and wife. At the time of Cicero[24] free divorce to both partners in the marriage contract was already established, and it was even denied that an announcement of the divorce was necessary. But the “lex Julia de adulteriis” prescribed that a divorce must be solemnly announced. This law was caused by the frequent occurrence that women, having committed adultery and then having been called to account, claimed to have divorced their husbands. Justinian (The Christian)[25] prohibited divorce, except when both parties wished to enter a monastery. But his successor, Justinian II., found it necessary to introduce it again.
As Rome grew in wealth and power, vice and licentiousness of the worst kind replaced the moral austerity of its early days. Rome became the center from which lewdness, debauchery and sensual finesse spread over the entire civilized world of that period. Especially during the time of the emperors, and frequently encouraged by the emperors themselves, the debauchery assumed forms that could only have been inspired by insanity. Men and women vied with each other in immorality. The number of public brothels increased rapidly, and besides the “Greek love” (sodomy) was practised more and more by the men. At one time the number of male prostitutes in Rome was greater than the number of female prostitutes.
The courtesans appeared in great pomp, surrounded by their admirers, on the streets and the promenade, in the circus and theater, sometimes reclining on couches carried by Negroes, holding a mirror in their hand, decked with jewels, partly nude, fanned by slaves, surrounded by a swarm of boys, eunuchs and flute-players, with grotesque dwarfs bringing up the rear.
These debaucheries assumed such dimensions in the Roman empire, that they threatened its very existence. The bad example set by men, was followed by women. There were women, so Seneca[26] reports, who did not count years by the consuls, as was customary, but by the number of their husbands. Adultery was general, and in order to escape the severe penalties attached to it, women had themselves registered as prostitutes. Even some of the most aristocratic ladies of Rome were among these.
Besides these debaucheries, civil wars and the system of the latifundia caused such a marked decline of the marriage and birth-rate, that the number of Roman citizens and patricians was greatly diminished. In the year 16 B. C. Augustus enacted the so-called Julian law;[27] that placed a penalty upon the unmarried state of Roman citizens and patricians, and rewarded them for having children. Whoever had children was deemed of higher station than childless or unmarried persons. Unmarried persons could not inherit property from anyone except their nearest relatives. People who had no children could only claim half of an inheritance, the other half was turned over to the state. Women who had been convicted of adultery, were compelled to give a part of their dowery to their deceived husbands. This provision caused some men to marry with a desire for adultery on the part of their wives. That caused Plutarch to remark: “Romans do not marry to have heirs, but to become heirs.” Later on the Julian law was still increased in severity. Tiberius issued an edict that no woman whose grandfather, father or husband had been or was a Roman knight, might prostitute herself. Married women, who had their names entered in the lists of prostitutes, should be banished from Italy. For the men, of course, no such punishments existed. As Juvenal reports, husband-murder by poison was a frequent occurrence in Rome of his day.