ROMAN JURISPRUDENCE.
If the Romans showed great practical sagacity in distributing political power among different classes and persons, their laws evince still greater wisdom. Jurisprudence is generally considered to be their indigenous science. It is for this they were most distinguished, and by this they have given the greatest impulse to civilization. Their laws were most admirably adapted for the government of mankind, but they had a still higher merit; they were framed, to a considerable degree, upon the principles of equity or natural justice, and hence are adapted for all ages and nations, and have indeed been reproduced by modern lawgivers, and so extensively, as to have formed the basis of many modern codes. Hence it is by their laws that the Romans have had the greatest influence on modern times, and these constitute a wonderful monument of human genius. If the Romans had bequeathed nothing but laws to posterity, they would not have lived in vain. These have more powerfully affected the interests of civilization than the arts of Greece. They are as permanent in their effects as any thing can be in this world--more so than palaces and marbles. The latter crumble away, but the legacy of Gaius, of Ulpian, of Paulus, of Tribonian, will be prized to the remotest ages, not only as a wonderful work of genius, but for its practical utility. The enduring influence of Moses is chiefly seen in his legislation, for this has entered into the Christian codes, and is also founded on the principles of justice. It is for this chiefly that he ranks with the greatest intellects of earth, whether he was divinely instructed or not.
[Sidenote: Object for which laws are made.]
Roman laws were first made in reference to the political exigencies and changes of the state, and afterwards to the relations of the state with individuals, or of individuals with individuals. The former pertain more properly to constitutional history; the latter belong to what is called the science of jurisprudence, and only fall in with the scope of this chapter. The laws enacted by the Roman people in their centuries, or by the Senate, pertaining to political rights and privileges--those by which power passed from the hands of patricians to plebeians, or from the populus to great executive officers--are highly important and interesting in an historical or political sense. But the genius of the Romans was most strikingly seen in the government of mankind; and it therefore the relations between the governing and the governed, the laws created for the general good, pertaining to property and crime and individual rights, which, in this chapter, it is my chief object to show.
[Sidenote: Greeks inferior to the Romans in jurisprudence.]
The Greeks, with all their genius, their great creation in literature, philosophy, and art, did very little for civilization, which we can trace, in the science of jurisprudence. They were too speculative for such a practical science. Nevertheless their speculative wisdom was made use of by Roman jurists. It was only so far as philosophy modified laws, that the influence of Greece was of much account.
[Sidenote: Jurisprudence culminates with emperors.]
Nor did Roman jurisprudence culminate in its serene majesty till the time of the emperors. It was not perfectly developed, until Justinian consolidated it in the Code, the Pandects, and the Institutes. The classical jurists may have laid the foundation; the superstructure was raised under the auspices of those whom we regard as despots.
[Sidenote: Early legislation.]
[Sidenote: The Twelve Tables.]
Ingenious writers, like Vico and Niebuhr, have extended their researches to the government of the kings, and advanced many plausible speculations; but the earliest legislation worthy of notice, was the celebrated code called the Twelve Tables, framed from the reports of the commissioners whom the Romans sent to Athens and other Greek states, to collect what was most useful in their legal systems. But scarcely any part of the civil law contained in the Twelve Tables has come down to us. All we know with certainty, is that it was the intention of the decemviral legislation to bring the estates into closer connection, and to equalize the laws for both. Nor do the provisions of the decemviral code, with which we are acquainted, show that enlightened regard to natural justice which characterized jurisprudence in its subsequent development. It allowed insolvent debtors to be treated with great cruelty; they could be imprisoned for sixty days, loaded with chains, and then might be sold into foreign slavery. It sanctioned a barbarous retaliation--an eye for an eye, and a tooth for a tooth. But it gave a redress for lampoons or libels, allowed an appeal from the magistrate to the people, and forbid capital punishment except by a decision of the centuries. [Footnote: Lord Mackenzie, part 6.] Niebuhr maintains, [Footnote: Lecture 25.] in his lectures on the History of Rome, that the Twelve Tables conceded the right to every pater familias of making a will, by which regulation the child of a plebeian, by a patrician mother, could succeed to his father's property, which was of great importance, and a great step in natural justice. It is supposed that the most important part of the decemviral legislation was the jus publicum, [Footnote: Cicero, De Legibus.] or that which refers to the Roman constitution. The Twelve Tables obtained among the Romans a peculiar reverence; they were committed to memory by the young; they were transcribed with the greatest care, and were considered as the fountain of right. They were approved by the comitia centuriata, which was the supreme authority, and in the time of Appius Claudius was composed of patricians alone. If Niebuhr is right in his statement that the power of making wills was given to plebeians, it shows a greater liberality on the part of patricians than what they generally have had credit for, and is hardly to be reconciled with the statement of Lord Mackenzie, that all marriages between patricians and plebeians were prohibited by the new code.
[Sidenote: The Twelve Tables the basis of Roman law.]
[Sidenote: Progress of Roman Law.]
The laws of the Twelve Tables were the basis of all the laws, civil and religious. But the edicts of the praetors, who were the great equity judges, as well as the common-law magistrates, [Footnote: Maine's Ancient Law, p. 67.] proclaimed certain changes which custom and the practice of the courts had introduced, and these, added to the leges populi or laws proposed by the consul and passed by the centuries, the plebiscita or laws proposed by the tribunes and passed by the tribes, and the senatus consulta, gradually swelled the laws to a great number. Three thousand plates of brass, containing these various laws, were deposited in the capitol. [Footnote: Suetonius, In Vespa.] Subtleties and fictions were introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated, even in the time of Cicero. The opinions of eminent lawyers were even adopted by the legal profession, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Alfenus Varus and Aeulius Gallus, wrote learned treatises, from which extracts appear in the Digest. Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners. In his time, the relative value of money had changed, and was greatly diminished. The most important law of Augustus, was the lex oelia sentia, deserving of all praise, which related to the manumission of slaves. But he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his Lex Julia et Papia Poppaea, to counteract the custom which then prevailed, of abstaining from legal marriage and substituting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes or centuries, that the next emperor abolished popular assemblies altogether, which Augustus feared to do. The Senate, in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original constitution, the people were the source of power, and the Senate merely gave or refused its approbation to the laws proposed, but under the emperors the comitia disappeared, and the Senate passed decrees, which have the force of laws, subject to the veto of the emperor. It was not until the time of Septimus Severus and Caracalla, that the legislative action of the Senate ceased, and the edicts and rescripts of emperors took the place of all legislation.
[Sidenote: Q. Mucius Scaevola.]
The golden age of Roman jurisprudence was from the birth of Cicero to the reign of Alexander Severus. Before this period it was an occult science, confined to praetors, pontiffs, and patrician lawyers. There were no books nor schools to teach its principles. But in the latter days of the republic law became the fashionable study of Roman youth, and eminent masters arose. The first great lawyer who left behind him important works, was the teacher of Cicero, Q. Mucius Scaevola, who wrote a treatise in eighteen books on the civil law. "He was," [Footnote: Cicero, _De Or._ i. 39.] says Cicero, "the most eloquent of jurists, and the most learned of orators." This work, George Long thinks, had a great influence on contemporaries and on subsequent jurists, who followed it as a model. It is the oldest work from which there are any excerpts in the Digest.
[Sidenote: Servius Sulpicius.]
[Sidenote: Labeo.]
[Sidenote: Gaius.]
[Sidenote: Papinian.]
[Sidenote: Paulus.]
Servius Sulpicius, the friend of Cicero, and fellow-student of oratory, surpassed his teachers Balbus and Gallus, and was the equal in reputation of the great Mucius Scaevola, the Pontifex Maximus, who said it was disgraceful for a patrician and a noble to be ignorant of the law with which he had to do. Cicero ascribes his great superiority as a lawyer to the study of philosophy, which disciplined and developed his mind, and enabled him to deduce his conclusions from his premises with logical precision. He left behind him one hundred and eighty treatises, and had numerous pupils, among whom A. Ofilius and Alfenus Varus, Cato, Caesar, Antony, and Cicero, were great lawyers. Labeo, in the time of Augustus, wrote four hundred books on jurisprudence, spending six months in the year in giving instruction to his pupils, and in answering legal questions, and the other six months in the country in writing books. Like all the great Roman jurists, he was versed in literature and philosophy, and so devoted to his profession that he refused political office. His rival, Capito, was equally learned in all departments of the law, and left behind him as many treatises as Labeo. These two jurists were the founders of celebrated schools, like the ancient philosophers, and each had distinguished followers. Masurius Sabinus Gaius and Pomponius, were of the school of Capito. M. Cocceius Nerva, Sempronius Proculus, and Juventius Celsus, were of the school of Labeo. Gaius, who flourished in the time of the Antonines, was a great legal authority; and the recent discovery of his Institutes has revealed the least mutilated fragment of Roman jurisprudence which exists, and one of the most valuable, and sheds great light on ancient Roman law. It was found in the library of Verona. No Roman jurist had a higher reputation than Papinian, who was praefectus praetorio under Septimius Severus, an office which made him only secondary to the emperor--a sort of grand vizier--whose power extended over all departments of the state. He was beheaded by Caracalla. The great commentator Cujacius, declares that he was the first of all lawyers who have been, or who are to be; that no one ever surpassed him in legal knowledge, and no one will ever equal him. Paulus was his contemporary, and held the same office as Papinian. He was the most fertile of Roman law-writers, and there is more taken from him in the Digest than from any other jurist, except Ulpian. There are two thousand and eighty-three excerpts from this writer, one sixth of the whole Digest. No legal writer, ancient or modern, has handled so many subjects. In perspicuity, he is said to be inferior to Ulpian, one of the most famous of jurists, who was his contemporary. He has exercised a great influence on modern jurisprudence from the copious extracts of his writings in Justinian's Digest. He was the chief adviser of Alexander Severus, and like Paulus was praefectus praetorio. The number of excerpts in the Digest from him, is said to be two thousand four hundred and sixty-two, and they form a third part of it. Some fragments of his writings remain. The last of the great civilians associated with Gaius, Papinian, Paulus, and Ulpian, as oracles of jurisprudence, was Modestinus, who was a pupil of Ulpian. He wrote both in Greek and Latin. There are three hundred and forty-five excerpts in the Digest from his writings, the titles of which show the extent and variety of his labors. [Footnote: These facts are drawn from the different articles of George Long, in _Smith's Dictionary_.]
[Sidenote: The profession of law.]
These great lawyers shed great glory on the Roman civilization. In the earliest times men sought distinction on the fields of battle, but in the latter days of the republic honor was conferred for forensic ability. The first pleaders of Rome were not jurisconsults, but aristocratic patrons looked after their clients. But when law became complicated, a class of men arose to interpret it, and these men were held in great honor, and reached, by their services, the highest offices--like Cicero and Hortensius. No remuneration was given originally for forensic pleading, beyond the services which the client gave to a patron, but gradually the practice of the law became lucrative. Hortensius, as well as Cicero, gained an immense fortune. He had several villas, a gallery of paintings, a large stock of wines, parks, fish-ponds, and aviaries. Cicero had villas in all parts of Italy; a house on the Palatine with columns of Numidian marble, and a fortune of twenty millions of sesterces, equal to $800,000. Most of the great statesmen of Rome, in the time of Cicero, were either lawyers or generals. Crassus, Pompey, P. Sextus, M. Marcellus, P. Clodius, Calidius, Messala Niger, Asinius Pollio, C. Cicero, M. Antonius, Caesar, Calvus, Caelius, Brutus, Catulus, Messala Cervirus, were all celebrated for their forensic efforts. Candidates for the bar studied four years under a distinguished jurist, and were required to pass a rigorous examination. The judges were chosen from members of the bar, as well as, in later times, the senators. The great lawyers were not only learned in the law, but possessed great accomplishments. Varro was a lawyer, and was the most learned man that Rome produced. But, under the emperors, the lawyers were chiefly distinguished for their legal attainments, like Paulus and Ulpian.
[Sidenote: Roman jurists.]
During this golden age of Roman jurisprudence, many commentaries were written on the Twelve Tables, the Perpetual Edict, the Laws of the People, and the Decrees of the Senate, as well as a vast mass of treatises on every department of the law, most of which have perished. The Institutes of Gaius, which have reached us nearly in their original form, are the most valuable which remain, and have thrown great light on some important branches previously involved in obscurity. Their use in explaining the Institutes of Justinian, is spoken of very highly by Mackenzie, since the latter are mainly founded on the long lost work of Gaius. A treatise of Ulpian, preserved in the Vatican, entitled "_Tituli ex corpore Ulpiani_" also contains valuable information, as well as the "_Receptae Sententiae_" of Julius Paulus, his great contemporary, both of which works, as well as others of inferior importance, were lately published at Rome by Dr. Gneist, called "Corpus Juris Romani Antejustinianii." [Footnote: Mackenzie, p. 16.] The great lawyers who flourished from Trajan to Alexander Severus, like Gaius, Ulpian, Paulus, Papinian, and Modestinus, had no successors who can be compared with them, and their works became standard authorities in the courts of law.
After the death of Alexander Severus no great accession was made to Roman law, until Theodosius II. caused the constitutions, from Constantine to his own time, to be collected and arranged in sixteen books. This was called the Theodosian Code, which in the West was held in high esteem, although superseded shortly after in the East by the Justinian Code.
[Sidenote: Justinian labors.]
To Justinian belongs the immortal glory of reforming the jurisprudence of the Romans. "In the space of ten centuries," says Gibbon, "the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest. Books could not easily be found and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion." [Footnote: Gibbon, ch. 44.] Justinian determined to unite in one body all the rules of law, whatever may have been their origin, and in the year 528, appointed ten jurisconsults, among whom was the celebrated Tribonian, to select and arrange the imperial constitutions, leaving out what was obsolete or useless or contradictory, and to make such alterations as the circumstances required. This was called the Code, divided into twelve books, and comprising the constitutions from Hadrian to Justinian. This was published in fourteen months after it was undertaken.
[Sidenote: Tribonian.]
[Sidenote: The code of Pandects.]
Justinian authorized Tribonian, then quaestor, "vir magnificus magisteria dignitate inter agentes decoratus," for great titles were now given to the officers of the crown, to prepare, with the assistance of seventeen associates, a collection of extracts from the writings of the most eminent jurists, so as to form a body of law for the government of the empire, with power to select and omit and alter; and this immense work was done in three years, and published under the title of Digest or Pandects. "All the judicial learning of former times," says Lord Mackenzie, "was laid under contribution by Tribonian and his colleagues. Selections from the works of thirty-nine of the ablest lawyers, scattered over two thousand separate treatises, were collected in one volume; and care was taken to inform posterity that three millions of lines were abridged and reduced, in these extracts, to the modest number of one hundred and fifty thousand. Among the selected jurists, only three names belonged to the age of the republic; the civilians who flourished under the first emperors are seldom appealed to; so that most of the writers, whose works have contributed to the Pandects, lived within a period of one hundred years. More than a third of the whole Pandects is from Ulpian, and next to him, the principal writers are Paulus, Papinian, Salvius Julianus, Pomponius, Q. Cervidius Scaevola, and Gaius. Though the variety of subjects is immense, the Digest has no claims to scientific arrangement. It is a vast cyclopedia of heterogeneous law badly arranged; every thing is there, but every thing is not in its proper place." [Footnote: Mackenzie, p. 25.]
[Sidenote: The Institutes.]
But neither the Digest nor the Code was adapted to elementary instruction. It was necessary to prepare a treatise on the principles of Roman law. This was entrusted to Tribonian, and two professors, Theophilus and Dorotheus. It is probable that Tribonian merely superintended the work, which was founded chiefly on the Institutes of Gains, and was divided into four books, and has been universally admired for its method and elegant precision. It was intended merely as an introduction to the Pandects and the Code.
[Sidenote: The Novels of Justinian.]
The Novels of Justinian were subsequently published, being the new ordinances of the emperor, and the changes he thought proper to make, and are therefore a high authority.
The Code, Pandects, Institutes, and Novels of Justinian, comprise the Roman law, as received in Europe, in the form given by the school of Bologna, and is called the "Corpus Juris Civilis." "It was in that form," says Savigny, "that the Roman law became the common law of Europe; and when, four centuries later, other sources came to be added to it, the Corpus Juris of the school of Bologna had been so universally received, and so long established as a basis of practice, that the new discoveries remained in the domain of science, and served only for the theory of the law. For the same reason, the Anti-Justinian law is excluded from practice." [Footnote: Savigny, Droit Romani, vol. i. p. 68.] After Justinian, the old texts were left to moulder as useless though venerable, and they have nearly all disappeared. The Code, the Pandects, and the Institutes, were declared to be the only legitimate authority and alone were admitted to the tribunals or taught in the schools. The rescripts of the early emperors recognized too many popular rights to suit the despotic character of Justinian, and the older jurists, like the Scaevolas, Sulpicius, and Labeo, were distasteful from their sympathy with free institutions. Different opinions have been expressed by the jurisconsults as to the merits of the Justinian collection. By some it is regarded as a vast mass of legal lumber; by others, as a beautiful monument of human labor. After the lapse of so many centuries, it is certain that a large portion of it is of no practical utility, since it is not applicable to modern wants. But again, no one doubts that it has exercised a great and good influence on moral and political science, and introduced many enlightened views concerning the administration of justice, as well as the nature of civil government, and thus has modified the codes of the Teutonic nations, which sprang up on the ruins of the old Roman world. It was used in the Greek empire until the fall of Constantinople. It never entirely lost authority in Italy, although it remained buried till the discovery of the Florentine copy of the Pandects at the siege of Amalfi in 1135. Peter Valence, in the eleventh century, made use of it in a law-book which he published. With the rise of the Italian cities, the study of Roman law revived, and Bologna became the seat from which it spread over Europe. In the sixteenth century, the science of theoretical law passed from Italy to France, under the auspices of Francis I., when Cujas or Cujacius became the great ornament of the school of Bourges, and the greatest commentator on Roman law until Dumoulin appeared. Grotius, in Holland, excited the same interest in civil law that Dumoulin did in France, followed by eminent professors in Leyden and the German universities. It was reserved for Pothier, in the middle of the eighteenth century, to reduce the Roman law to systematic order--one of the most gigantic tasks which ever taxed the industry of man. The recent discoveries, especially that made by Niebuhr, of the long lost work of Gaius have given a great impulse to the study of Roman law in Germany, and to this impulse no one has contributed so greatly as Savigny of Berlin.
The great importance of the subject demands a more minute notice of the principles of the Roman law, than what the limits of this work should properly allow. I shall therefore endeavor to abridge what has been written by the more eminent authorities, taking as a basis the late work of Lord Mackenzie and the learned and interesting essay of Professor Maine.
[Sidenote: Law of persons.]
The Institutes of Justinian commenced with the law of persons, recognizing the distinction of ranks. All persons are capable of enjoying civil rights, but not all in the same degree. Greater privileges are allowed to men than to women, to freemen than to slaves, to fathers than to children.
[Sidenote: Equality of citizens.]
In the eye of the law all Roman citizens were equal, wherever they lived, whether in the capital or the provinces. Citizenship embraced both political and civil rights. The political rights had reference to the right of voting in the comitia, but this was not considered the essence of citizenship, which was the enjoyment of the connubium and commercium. By the former the citizen could contract a valid marriage, and acquire the rights resulting from it, particularly the paternal power; by the latter he could acquire and dispose of property. Citizenship was acquired by birth and by manumission; it was lost when a Roman became a prisoner of war, or had been exiled for crime, or became a citizen of another state. An unsullied reputation was necessary for a citizen to exercise his rights to their full extent.
[Sidenote: Slaves.]
The Roman jurists acknowledged all persons originally free by natural law; and, while they recognized slavery, ascribed the power of masters entirely to the law and custom of nations. Persons taken in war were considered at the absolute control of their captors, and were therefore, de facto, slaves; and the children of a female slave followed the condition of their mother, and belonged to her master. But masters could manumit their slaves, who thus became Roman citizens, with some restrictions. Until the time of Justinian, they were not allowed to wear the gold ring, the distinguishing symbol of a man born free. This emperor removed all restrictions between freedmen and citizens. Previously, after the emancipation of a slave, he was bound to render certain services to his former master as patron, and if the freedman died intestate his property reverted to his patron.
[Sidenote: Marriage.]
Marriage was contracted by the simple consent of the parties, though in early times, equality of condition was required. The lex Canuleia, A. U. C. 309, authorized connubium between patricians and plebeians, and the lex Julia, A. U. C. 757, allowed it between freedmen and freeborn. By the conventio in manum, a wife passed out of her family into that of her husband, who acquired all her property; without it, the woman remained in the power of her father, and retained the free disposition of her property. Poligamy was not permitted; and relationship within certain degrees rendered the parties incapable of contracting marriage, and these rules as to forbidden degrees have been substantially adopted in England. Celibacy was discouraged. The law of Augustus Julia et Papia Poppaea contained some seven regulations against it, which were abolished by Constantine. Concubinage was allowed, if a man had not a wife, and provided the concubine was not the wife of another man. This heathenish custom was abrogated by Justinian. [Footnote: D. 25. 7. C. 5, 26.] The wife was entitled to protection and support from her husband, and she retained her property independent of her husband, when the conventio was abandoned, as it was ultimately. The father gave his daughter, on her marriage, a dowry in proportion to his means, the management of which, with its fruits during marriage, belonged to the husband; but he could not alienate real estate without the wife's consent, and on the dissolution of marriage the dos reverted to the wife. Divorce existed in all ages at Rome, and was very common at the commencement of the empire. To check its prevalence, laws were passed inflicting severe penalties on those whose bad conduct led to it. Every man, whether married or not, could adopt children, under certain restrictions, and they passed entirely under paternal power. But the marriage relation among the Romans did not accord after all with those principles of justice which we see in other parts of their legislative code. The Roman husband, like the father, was a tyrant. The facility of divorce destroyed mutual confidence, and inflamed every trifling dispute, for a word, or a message, or a letter, or the mandate of a freedman, was quite sufficient to secure a separation. It was not until Christianity became the religion of the empire, that divorce could not be easily effected without a just cause.
[Sidenote: Paternal power.]
Nothing is more remarkable in the Roman laws than the extent of paternal power. It was unjust, and bears the image of a barbarous age. Moreover, it seems to have been coeval with the foundation of the city. A father could chastise his children by stripes, by imprisonment, by exile, by sending them to the country with chains on their feet. He was even armed with the power of life and death. "Neither age nor rank, nor the consular office, could exempt the most illustrious citizen from the bonds of filial subjection. Without fear, though not without danger of abuse, the Roman legislators had reposed unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master." [Footnote: Gibbon, c. xliv.] By an express law of the Twelve Tables a father could sell his children as slaves. But the abuse of paternal power was checked in the republic by the censors, and afterwards by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. [Footnote: Ch. iv. 17.] The rigor of parents in reference to the disposition of the property of children, was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war. Under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this patria potestas was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and severer than is ever seen in the modern world. [Footnote: Maine, Ancient Law, p. 143.] No one but a Roman citizen could exercise this awful paternal power, nor did it cease until the father died, or the daughter had entered into marriage with the conventio in manum. Illegitimate children were treated as if they had no father, and the mother was bound to support them until Justinian gave to natural children a right to demand aliment from their father. [Footnote: N. 89, ch. xii.] Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents in want. These reciprocal duties, creditable to the Roman law-givers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers, which the Roman fathers had not power to do. [Footnote: Lord Mackenzie, p. 142.] The age when children attain majority among the Romans, was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person, and the right to manage his estate, although the tutor could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.
[Sidenote: Real rights.]
The Institutes of Justinian pass from persons to things, or the law relating to real rights; in other words, that which pertains to property. Some things, common to all, like air, light, the ocean, and things sacred, like temples and churches, are not classed as property. Originally, the Romans divided things into res mancipi, and res nec mancipi. The former comprehended houses, lands, slaves, and beasts of burden, and could only be acquired by certain solemn forms, which, if not observed, the property was not legally transferred. The latter included all other things, and admitted of being transferred by simple tradition.
[Sidenote: Occupancy.]
Occupancy, one of the original modes of acquiring property, was applied to goods and persons taken in war; to things lost by negligence, or chance, or thrown away by necessity; to pearls, shells, and precious stones found on the sea-shore; to wild animals, to fish, to hidden treasure.
Acquisition, by accession, pertained to the natural and industrial fruits of the land, the rents of houses, interest on money, the increase of animals, lands gained from the sea, and movables.
[Sidenote: Transfer of property.]
[Sidenote: Testaments and legacies.]
[Sidenote: Laws of succession.]
[Sidenote: The laws in inheritance.]
Two things were required for the transfer of property, for it is the essence of property that the owner of a thing should have the right to transfer it,--first, the consent of the former owner to transfer the thing upon some just ground; and secondly, the actual delivery of the thing to the person who is to acquire it. Movables were presumed to be the property of the possessors, until positive evidence was produced to the contrary. A prescriptive title to movables was acquired by possession for one year, and to immovables by possession for two years. Undisturbed possession for thirty years constituted in general a valid title. When a Roman died, his heirs succeeded to all his property, by hereditary right. If he left no will, his estate devolved upon his relations in a certain order prescribed by law. The power of making a testament only belonged to citizens above puberty. Children under the paternal power could not make a will. Males above fourteen, and females above twelve, when not under power, could make wills without the authority of their guardian; but pupils, lunatics, prisoners of war, criminals, and various other persons, were incapable of making a testament. The testator could divide his property among his heirs in such proportions as he saw fit; but if there was no distribution, all the heirs participated equally. A man could disinherit either of his children by declaring his intentions in his will, but only for grave reasons, such as grievously injuring his person or character or feelings, or attempting his life. No will was effectual unless one or more persons were appointed heirs to represent the deceased. Wills were required to be signed by the testator, or some person for him, in the presence of seven witnesses who were Roman citizens. If a will was made by a parent for distributing his property solely among his children, no witnesses were required, and the ordinary formalities were dispensed with among soldiers in actual service, and during the prevalence of pestilence. The testament was opened in the presence of the witnesses, or a majority of them; and after they had acknowledged their seals, a copy was made, and the original was deposited in the public archives. According to the Twelve Tables, the powers of a testator in disposing of his property were unlimited, but in process of time laws were enacted to restrain immoderate or unnatural bequests. By the Falcidian law, in the time of Augustus, no one could leave in legacies more than three fourths of his estate, so that the heirs could inherit at least one fourth. Again a law was passed, by which the descendants were entitled to one third of the succession, and to one half if there were more than four. In France if a man die leaving one lawful child, he can only dispose of half of his estate by will; if he leaves two children, the third; if he leaves three or more, the fourth. [Footnote: Code Civil, Art. 913.] In England a man can cut off both his wife and children. [Footnote: Williams, _Exec._, p. 3.] The Romans recognized bequests in trust, besides testaments, by which property descended directly to the heir. The person charged with a trust was bound to restore the subject at the time appointed by the testator. The trustee could not alienate an estate without the consent of all the parties interested, except for the payment of debts. All persons capable of making a will could leave legacies, real or personal, but these were not due if the testator died insolvent. When a man died intestate, the succession devolved on the descendants of the deceased; but, these failing, the nearest ascendants were called; if there were brothers and sisters, they were entitled to succeed together along with the ascendants in the same class. Children succeeded to property, if their father died intestate, in equal portions, without distinction of sex, and if there was only one child he took the whole estate. A descendant of either sex, or any degree, was preferred to all ascendants and collaterals. The descendants of a son or daughter, who had predeceased, took the same share of the succession that their parent would have done had he been alive. In England, if all the children are dead, and only grandchildren exist, they all take, not by families, but per capita, equal shares in their own right as next of kin, and Mackenzie thinks this arrangement is more equitable than the Roman. [Footnote: Mackenzie, p. 288] If there were no descendants, the Roman father and mother, and other ascendants, excluded all collaterals from the succession except brothers and sisters of the whole blood, and the children of deceased brothers and sisters. When ascendants stood alone, the father and mother succeeded in equal portions, and if only one survived, he or she succeeded to the whole, so that grandparents were excluded. If there were brothers and sisters of the whole blood, the estate was divided among them in capita, according to the number of persons, including the father and mother. The children of a deceased brother were not admitted to the succession along with ascendants and surviving brothers and sisters. [Footnote: _Ibid._ 290] If a person died leaving neither ascendants nor descendants, his brothers and sisters succeeded to his estate in equal shares. And if the intestate left also nephews and nieces by a deceased brother or sister, these succeeded, along with their uncles and aunts, to the share their parent would have taken. On the failure of brothers and sisters by the whole blood, the brother and sisters by the half blood succeeded, and if any of these brothers and sisters have died leaving children, the right of representation was extended to them also, just as in the case of children of brothers-german. When husband or wife died, without leaving relations, the survivor was called to the succession. A widow who was poor and unprovided for had a right to share in the succession of her deceased husband. When he left more than three descendants, she was entitled to participate with them equally. If there were only three or fewer, she was entitled to one fourth of the estate. If she had children by the deceased, she had only the usufruct of her portion during her life, and was bound to preserve it for them. If a man had no legitimate children, he could leave his whole inheritance to his natural children, or to their mother; but if he had lawful children, he could leave only one twelfth to the natural children and their mother. If the father died intestate, without leaving a lawful wife or issue, his natural children and their mother were entitled to one sixth of the succession, and the rest was divided among the lawful heirs.
[Sidenote: Contracts.]
In the matter of contracts, the Roman law was especially comprehensive, and the laws of France and Scotland are substantially based upon the Roman system. The Institutes of Gaius and Justinian distinguish four sorts of obligation,--aut re, aut verbis, aut literis, aut consenser. Gibbon, in his learned chapter, prefers to consider the specific obligations of men to each other under promises, benefits, and injuries. Lord Mackenzie treats the subject in the order of the Institutes.
"Obligations contracted _re_--by the intervention of things--are called by the moderns real contracts, because they are not perfected till something has passed from one party to another. Of this description are the contracts of loan, deposit, and pledge. Till the subject is actually lent, deposited, or pledged, it does not form the special contract of loan, deposit, or pledge." [Footnote: Mackenzie.]
[Sidenote: Loans.]
In regard to loans, the borrower was obliged to take care of it as if it were his own. _In rebus commodatis tails diligentia proestanda est, qualem quisque diligentissimus paterfamilias suis rebus adhibet_. [Footnote: D. 13, 6, 1 pr.] He could only use a thing for the purpose for which it was lent; he could not keep it beyond the time agreed upon, nor detain it as a set-off against any debt. He was bound to restore the article in the same condition as received, subject only to the deterioration arising from reasonable use, whether a horse, a house, or a carriage. And he was required to make good all injuries caused by his own fault or negligence. If the article perished, without any blame or neglect, the loss fell on the owner. If the loan was for consumption, which was called mutuum, like corn, or oil, or wine, the borrower was required to return as much of the same kind and quality, whether the price of the commodity had risen or fallen. In a loan of money, under mutuum, the borrower was not required to pay interest. Interest was only due ex lege, or by agreement. The rate varied at different times; generally, it was eight and one third per cent., and even more than this in the latter years of the republic. Justinian introduced a scale which varied with different classes of society. Persons of illustrious rank could lend money at four per cent., ordinary people at six, and for maritime risks twelve; but it was unlawful to charge interest upon interest. [Footnote: C. 4, 32, 26, Section 1.] Property would double, at eight and one third, in twelve years, not so rapidly as by our system of compound interest, especially at the rate of seven per cent. In England the usury laws of different monarchs limited interest from ten per cent, to five; but these were repealed in 1854. Only five per cent. can now be recovered upon any contract.
[Sidenote: Deposits.]
A deposit differed from a loan in this,--that the depositary was not entitled to any use of a thing deposited, and was bound to preserve it with reasonable care, and restore it on demand. As he derived no advantage, he was entitled to be reimbursed for all necessary charges. Ship-masters, innkeepers, and stablers, were responsible for the luggage and effects of travellers intrusted to their care, which policy is now adopted in both Europe and America, on the ground that if they were not held strictly to their charge, being not a very reputable class of men in ancient times, they might be in league with thieves. An innkeeper was therefore held responsible for loss, or damage, or theft, to secure the protection of travellers, whose patronage was a compensation. In case of robbery, when goods were taken by superior force, he was not responsible, nor was he for loss occasioned by inevitable accident.
[Sidenote: Pledges and securities.]
At Rome, pledges were customary, as a security for money due, on condition of their restoration after the payment of a debt. Real property, like houses and lands, as well as movables, were the subject of pledge. [Footnote: D. 20, 1.] The creditor was bound to bestow ordinary care and diligence in the preservation of the subject, but he could not use it, or take the profits of it, without a special contract. By the pactum antichresis, the creditor was allowed to take the profits in lieu of the interest on his debt; by the lex commissoria, the thing pledged became the absolute property of the creditor if the debt was not paid at the time agreed on. But as this condition was found to be a source of oppression, it was prohibited by a law of Constantine. [Footnote: C, 7, 35.] When the debt, interest, and all necessary expenses were paid, the debtor was entitled to have his pledge restored to him. After the time of payment was passed, the creditor had a right to sell the pledge, and retain his debt out of the produce of the sale; if there was a deficiency, the balance could be recovered by an action; if there was a surplus, the debtor was entitled to it. The Roman pledge was of the nature of the modern business of pawnbroking and of a mortgage.
[Sidenote: Verbal Contracts.]
Next to the perfection of contracts by the intervention of things re, were obligations contracted by _verbis_--solemn words-- and by literis or writing. The verborum obligatio was contracted by uttering certain formal words of style, an interrogation being put by one party and an answer given by the other. These stipulations were binding. In England all guarantees must be in writing.
[Sidenote: Written obligations.]
The obligatio literis was a written acknowledgment of debt chiefly employed when money was borrowed, but the creditor could not sue upon the note within two years from its date, without being called upon also to prove that the money was in fact paid to the debtor.
[Sidenote: Sales.]
Contracts perfected by consent--_consenses_--had reference to sale, hiring, partnership, and mandate. All contracts of sale were good without writing. When an article was sold and delivered, the market price, as fixed by custom, determined the price, if nothing had been said about it. The seller was bound to warrant that the thing sold was free from defects, and when the subject did not answer this implied warranty, the sale might be set aside. But the seller could stipulate that he should not be held to warrant against defects. Property was not transferred without actual delivery. When the sale was completed, all the risks of the thing sold passed to the purchaser. In the case of commodities sold by weight, number, or measure, the contract was not completed until the goods were weighed, counted, or measured, which sometimes caused considerable difficulty. After delivery, the seller was bound to warrant the title to the buyer, and to indemnify him for any loss. [Footnote: D. 22, 2. C. 8, 45.]
[Sidenote: Leases.]
[Sidenote: Agents and Partners.]
In regard to hiring, all sorts of things, which were the subject of commerce, may be let for hire. Leases of land and houses come under this head. They were generally given for five years, and unless there was an express stipulation, the lessee might sublet to another. The lessor was required to deliver the subject in a good state of repair, and maintain it in that condition, and to guarantee its peaceable enjoyment; the lessee was bound to use the subject well, to put it to no use except that for which it was let, to preserve it in good condition, and restore it at the end of the term. He was bound also to pay the rent at the stipulated period, and when two years' rent were in arrear, the tenant could be ejected. The tenant of a farm was entitled to a remission of his rent if his crop was destroyed by an unforeseen accident or calamity. A contractor who agreed to undertake a piece of work was required to finish it in a proper manner, and if from negligence or ignorance the work was defective, he was liable to damages. In a partnership, if there were no express agreement, the shares of profit and loss were divided equally. Each partner was bound to exercise the same care for the joint concern as if it were his own. The acts of one partner were not binding on another, if he acted beyond the scope of the partnership. If one of the partners advanced money on account of the partnership, each of the partners were bound to contribute to the indemnity in proportion to his share of the concern; and if any of them became insolvent, the solvent shareholders were obliged to make up the deficiency. [Footnote: D. 17, 2, 67.] An agent could be employed to transact business for another, but was required to act strictly according to his orders, and the mandant, who gave the orders, was bound to ratify what was done by the mandatary, and to reimburse him for all advances and expenses incurred in executing the commission. By the Roman law agents were not remunerated. Donations could not be made beyond a certain maximum. Justinian ordered that when gifts exceeded five hundred solidi, a formal act stating the particulars of the donation should be inscribed in a public register.
When a person spontaneously assumed the management of the affairs of another in his absence, and without any mandate, this was called negotiorum gestio, and the person was bound to perform any act which he had begun, as if he held a proper mandate, and strictly account for his management, while the principal was bound to indemnify him for all advances and expenses.
When money was paid through error it could be recovered, under certain circumstances. But this point is a matter concerning which the jurists differ.
[Sidenote: Libels.]
[Sidenote: Damages.]
Acts which caused damage to another obliged the wrongdoer to make reparation, and this responsibility extended to damages arising not only from positive acts, but from negligence or imprudence. In an action of libel or slander, the truth of the allegation might be pleaded in justification. [Footnote: D. 47, 10, 18.] In all cases it was necessary to show that an injury had been committed maliciously. But if damage arose in the exercise of a right, as killing a slave in self-defense, no claim for reparation could be maintained. If any one exercised a profession or trade for which he was not qualified, he was liable to all the damage his want of skill or knowledge might occasion. When any damage was done by a slave or an animal, the owner of the same was liable for the loss, though the mischief was done without his knowledge and against his will. If any thing was thrown from a window of a house near the public thoroughfare, so as to injure any one by the fall, the occupier was bound to repair the damage, though done by a stranger. Claims arising under obligations might be transferred to a third person, by sale, exchange, or donation; but to prevent speculators from purchasing debts at low prices, it was ordered that the assignee should not be entitled to exact from the debtor more than he himself had paid to acquire the debt with interest,--a wise and just regulation which it would be well for us to copy. In regard to the extinction of obligations the creditor is not bound to accept of payments by instalments, or any thing short of proper payment at the time and place agreed upon. When several debts were due, the debtor, in making payment, could appropriate it to any one he pleased. [Footnote: D. 46, 3, 1.] When performance became impossible, without any fault of the debtor, such as when the specific subject had perished by unavoidable accident, the obligation was extinguished; but if the impossibility was caused by the fault of the debtor, he was still liable. This was a great modification of the severity of the ancient code, when a debtor could be sold into slavery for his debt. As certain contracts are formed by consent alone, so they could be extinguished by the mutual consent of the contracting parties, without performance on either side. In some cases the mere lapse of time extinguished an obligation, as in accordance with the modern system of outlawry.
[Sidenote: Law of actions.]
The next great department of Roman jurisprudence pertained to actions and procedure. The state conferred on a magistrate or judge jurisdiction to determine questions according to law. Civil jurisdiction pertains to questions of private right; criminal jurisdiction takes cognizance of crimes. When jurisdiction was conferred on a Roman magistrate, he acquired all the powers necessary to exercise it. The imperium merum gave the power to inflict punishment; the imperium mixtum was the power to carry civil decrees into execution. A real action was directed against a person in the territory where the subject in dispute was located.
By the ancient constitution, the king had the prerogative of determining civil causes. The right then devolved on the consuls, afterwards on the praetor, and in certain cases on the curule and plebeian ediles, who were charged with the internal police of the city.
[Sidenote: The Praetors.]
The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, assisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the limits of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.
[Sidenote: Other judges.]
The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence. And as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperatores heard and determined cases, but the number appointed for each case was usually three or five.
[Sidenote: The centumvirs.]
The centumvirs constituted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe, and this tribunal was presided over by the praetor, and divided into four chambers, which, under the republic, was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. [Footnote: Cicero de Orat., i. 38.] The Romans had no class of men like the judges of modern times. The superior magistrates were changed annually, and political duties were mixed with judicial. The evil was partially remedied by the institution of legal assessors, selected from the most learned jurisconsults. Under the empire, the praetors were greatly increased. Under Tiberius, there were sixteen who administered justice, beside the consuls, six ediles, and ten tribunes of the people. The emperor himself became the supreme judge, and he was assisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. The Praetorian prefects, although, at first, their duties were purely military, finally discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.
[Sidenote: Witnesses.]
In all cases brought before the courts, the burden of proof was with the party asserting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted. Pupils, lunatics, infamous persons, interested parties, near relations, and slaves, could not bear evidence, or any person who had a strong enmity against the party. The witnesses were required to give their testimony on oath. Two witnesses were enough to prove a fact, in most instances. When witnesses gave conflicting testimony, the judge regarded those who were worthy of credit rather than numbers. In the English courts, the custom used to be as with the Romans, of refusing testimony from those who were interested, but this has been removed. On the failure of regular proof, the Roman law allowed a party to refer the facts in a civil action to the oath of his adversary.
[Sidenote: Condition of debtors.]
Under the empire every judgment was reduced to writing and signed by the judge, and then entered upon a register. [Footnote: C. vii. 45, 12.] After the sentence, the debtor was allowed thirty days for the payment of his debt, after which he was assigned over to the creditor and kept in chains for sixty days, during which he was publicly exposed for three market days, and if no one released him by paying the debt, he could be sold as a slave. Justinian extended the period to four months for the payment of a judgment debt, after which, if the debt was not paid, the debtor could be imprisoned, but not, as formerly, in the creditor's house. At first the goods of the debtor were sold in favor of any one who offered to pay the largest dividend, but in process of time, the goods of the debtor were sold in detail, and all creditors were paid a ratable dividend. In no respect are modern codes superior to the Roman, so much as in reference to imprisonment for debt. In the United States it has practically ceased, and in England no one can be imprisoned for a debt under 20 pounds, and in France under 8 pounds.
[Sidenote: Appeal.]
Under the Roman republic, there was no appeal in civil suits, but under the emperors a regular system was established. Under Augustus, there was an appeal from all the magistrates to the prefect of the city, and from him to the Praetorian prefect or emperor. In the provinces there was an appeal from the municipal magistrates to the governors, and from them to the emperor. Under Justinian, no appeal was allowed from a suit which did not involve at least twenty pounds in gold.
[Sidenote: Criminal courts.]
In regard to criminal courts, among the Romans, during the republic, the only body which had absolute power of life and death was the comitia centuriata. The Senate had no jurisdiction in criminal cases, so far as Roman citizens were concerned. It was only in extraordinary emergencies that the Senate, with the consuls, assumed the responsibility of inflicting summary punishment. Under the emperors, the Senate was armed with the power of criminal jurisdiction. And as the Senate was the tool of the imperator, he could crush whomsoever he pleased.
As it was inconvenient, when Rome had become a very great city, to convene the comitia for the trial of offenders, the expedient was adopted of delegating the jurisdiction of the people to persons invested with temporary authority, called quaesitores. These were established at length into regular and permanent courts, called quaestiones perpetuae. Every case submitted to these courts was tried by a judge and jury. It was the duty of the judge to preside and regulate proceedings according to law; and it was the duty of the jury, after hearing the evidence and pleadings, to decide upon the guilt or innocence of the accused. As many as fifty persons frequently composed the jury, whose names were drawn out of an urn. Each party had a right to challenge a certain number, and the verdict was decided by a majority of votes. At first the judices were chosen from the Senate, and afterwards from the Equestrians, and then again from both orders. But in process of time the quaestiones perpetuae gave place to imperial magistrates. The accused defended himself in person or by counsel.
[Sidenote: Crimes.]
The Romans divided crimes into public and private. Private crimes could only be prosecuted by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.
[Sidenote: Treason.]
Of public crimes, the crimen loesoe majestatis, or treason, was regarded as the greatest, and this was punished with death, and with confiscation of goods, [Footnote: I. 4, 18, 3.] while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire, not only any attempt on the life of the emperor was treason, but disrespectful words or acts. The criminal was even tried after death, [Footnote: C. 9, 8, 6.] that his memory might become infamous, and this barbarous practice existed even in France and Scotland, as late as the beginning of the seventeenth century. In England, men have been executed for treasonable words. Beside treason there were other crimes against the state, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery, most of which offenses were punished by pecuniary penalties.
[Sidenote: Capital punishments.]
[Sidenote: Criminal law gradually ameliorated.]
But there were also crimes against individuals which were punished with the death penalty. Willful murder, poisoning, parricide, were capitally punished. Adultery was punished by banishment, beside a forfeiture of considerable property. [Footnote: D, 48, 5.] Constantine made it a capital offense. The Romans made adultery to consist in sexual intercourse with another man's wife, but not with a woman who was not married, even if he were married. Rape was punished with death [Footnote: C. 9, 13.] and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury, were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property, were private trespasses, and not punished by the state. After a lapse of twenty years, without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence, which never attained the perfection that was seen in the Civil Code. It was in this that the full maturity of wisdom was seen. The emperors greatly increased the severity of punishments, as probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans, in the days of the republic, passed from extreme rigor to great lenity, as is observable in the transition from the Puritan regime to our times in the United States. Capital punishment for several centuries was exceedingly rare, and this was prevented by voluntary exile. Under the empire, public executions were frequent and revolting.
[Sidenote: Fines.]
[Sidenote: Exile.]
Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was also rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes. But Roman citizens could be sold into slavery for various offenses, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common--_aquae et ignis interdictio_--and this was equivalent to the deprivation of the necessities of life, and incapacitating a person from exercising the rights of citizenship. Under the emperors, persons were confined often on the rocky islands off the coast, or a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine. Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading, also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths. It was abolished by Constantine from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts. It was thus the early Christians were tormented, since their offense was associated with treason. Persons of distinction were treated with more favor than the lower classes, and the punishment was less cruel and ignominious. Thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European states followed too often the barbarous custom of the emperors until a recent date. Since the French Revolution, the severity of the penal codes has been much modified.
[Sidenote: Excellence of laws pertaining to property.]
[Sidenote: Rights of citizens.]
The penal statutes of Rome, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings, the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the state are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions would arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration. Their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor. But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that prove that the Romans, in their civil and social relations, were very much on a level with modern times. And it would be difficult to find, in the most enlightened of modern codes, greater wisdom and foresight than what appear in the legacy of Justinian, as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. What can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi contracts! How clear the laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers! How wise the regulations in reference to intestate succession, and to the division of property among males and females. We find no laws of entail, no unequal rights, no absurd distinctions between brothers, no peculiar privileges given to males over females, or to older sons. In the Institutes of Justinian, we see on every page a regard to the principles of natural justice. We discover that the property of the wife cannot be alienated nor mortgaged by a prodigal husband; that wards are to be protected from the cupidity of guardians; that property could be bequeathed by will, and that wills are sacred; that all promises are to be fulfilled; that he who is intrusted with the property of another is bound to restitution by the most imperative obligations; that usury should be restrained; that all injuries should be repaired; that cattle and slaves should be protected from malice and negligence; that atrocious cruelties in punishment should not be inflicted; that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved. In short, every thing pertaining to property and contracts and wills is guarded with the most zealous care. A man was sure of possessing his own, and of transmitting it to his children. No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress. Nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property. He was supreme and uncontrolled within his family. And this security to property and life and personal rights was guaranteed by the greatest tyrants. The fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence, in some of the most important departments of life, reached perfection. If injustice was suffered, it was not on account of the laws, but the depravity of men, the venality of the rich, and the tricks of lawyers. But the laws were wise and equal. The civil jurisprudence could be copied with safety by the most enlightened of European states. And, indeed, it is the foundation of their civil codes, especially in France and Germany.
[Sidenote: Abuse of paternal power.]
That there were some features in the Roman laws which we, in these Christian times, cannot indorse, and which we reprehend, cannot be denied. Under the republic, there was not sufficient limit to paternal power, and the paterfamilias was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed such absolute control, not only over his children, but his wife. But the limits of paternal power were more and more curtailed, so that under the latter emperors, fathers were not allowed to have more authority than was perhaps expedient.
[Sidenote: Evils of slavery.]
The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without redress. But here the Romans were not sinners beyond all other nations, and our modern times have witnessed a parallel.
It was not the existence of slavery which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and it was most disgraceful to doom a debtor to the absolute power of a creditor. To subject men of the same blood to slavery for trifling debts, which they could not discharge, was the great defect of the Roman laws. But even these cruel regulations were modified, so that in the corrupt times of the empire, there was no greater practical severity than what was common in England one hundred years ago. The temptations to fraud were enormous in a wicked state of society, and demanded a severe remedy. It is possible that future ages may see too great leniency shown to debtors, who are not merely unfortunate but dishonest, in these our times; and the problem is not yet solved, whether men should be severely handled who are guilty of reckless and unprincipled speculations and unscrupulous dealings, or whether they should be allowed immunity to prosecute their dangerous and disgraceful courses.
[Sidenote: Evils of divorce.]
The facility of divorce was another stigma on the Roman laws, and the degradation of woman was the principal consequence. But woman never was honored in any pagan land. Her condition at Rome was better than it was at Athens. She always was regarded as a possession rather than as a free person. Her virtue was mistrusted, and her aspirations were scorned. She was hampered and guarded more like a slave than the equal companion of man. But the whole progress of legislation was in her favor, and she continued to gain new privileges to the fall of the empire.
[Sidenote: Severity of penal law.]
[Sidenote: Certainty of punishment.]
Moreover, the penal code of the Romans, in reference to breaches of trust, or carelessness, or ignorance, by which property was lost or squandered, may have been too severe, as is the case in England in reference to hunting game on another's grounds. It was hard to doom a man to death who drove away his neighbor's cattle, or entered in the night his neighbor's house. But severe penalties alone will keep men from crimes where there is a low state of virtue and religion, and society becomes impossible when there is no efficient protection to property. If sheep can be killed by dogs, if orchards can be stripped of their fruit, and jewelry be appropriated by servants with impunity, a great stimulus to honest industry is taken away, and men will be forced to seek more distant homes where they can reap the fruits of toil, or will give up in despair. Society was never more secure and happy in England than when vagabonds could be arrested, and when petty larcenies were visited with certain retribution. Every traveler in France and England feels that in regard to the punishment of crime, those old countries, restricted as are political privileges, are vastly superior to our own. The Romans lost, under the emperors, their political rights; but they gained protection and safety in their relations with society. And where quiet and industrious citizens feel safe in their homes, and are protected in their dealings from scoundrels, and have ample scope for industrial enterprise, and are free to choose their private pleasures, they resign themselves to the loss of electing their rulers without great unhappiness. There are greater evils in the world than the deprivation of the elective franchise, great and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights, but the evils of political slavery were qualified and set off by the excellence of the civil code, and the privileges of social freedom.
[Sidenote: Intricacy and uncertainty of the law.]
The great practical evil connected with Roman jurisprudence was the intricacy and perplexity and uncertainty of the laws, together with the expense involved in litigation. The class of lawyers was large, and their gains were extortionate. Justice was not always to be found on the side of right. The law was uncertain as well as costly. The most learned counsel could only be employed by the rich, and even judges were venal. So that the poor did not easily find adequate redress, and the good became an evil. But all this is the necessary attendant on a factitious state of society. Material civilization will lead to an undue estimate of money. And when money purchases all that artificial people desire, then all classes will prostitute themselves for its possession, and justice, dignity, and elevation of sentiment are forced to retreat, as hermits sought a solitude, when society had reached its lowest degradation, out of pure despair of its renovation.
* * * * *
The authorities for this chapter are very numerous. Since the Institutes of Gaius have been recovered, very many eminent writers on Roman law have appeared, especially in Germany and France. Among those who could be cited, are Beaufort, Histoire de la Republique Romaine; Colquhoun, Summary of the Roman Civil Law; De Fresquet, Traite Elementaire de Droit Romain; Ducaurroy (A. M. Professor of Roman Law at Paris), Les Institutes de Justinien nouvellement expliquees; Gneist (Dr. Reed), Institutionum et Regularum Juris Romani; Halifax (Dr. Samuel), Analysis of the Roman Civil Law; Heineccius (Jo. Gott.), Elementa Juris Civilis Secundum Ordinem Institutionum; Laboulaye, Essai sur les Lois Criminelles des Remains; Long's Articles on Roman Law in Dr. Smith's Dictionary; Maine's Ancient Law; Gaius, Institutionum Commentarii Quatuor; Marezole (Theodore, Professor at Leipsic), Lebruch der Institutionem des Romischen Rechts; Maynz (Charles, Professor of Law at Brussels), Elements du Droit Romain; Ortolan (M., Professor at Paris), Explication Historique des Institutes de l'Empereur Justinien; Phillimore, Introduction to the Study and History of Roman Law; Pothier, Pandectae Justinianae in Novum Ordinem Digestae; Savigny, Geschichte des Rom. Rechts; Walter, Histoire de la Procedure Civile Chez Romains.
I have found the late work of Lord Mackenzie, on Roman Law, together with the articles of George Long, in Smith's Dictionary, the most useful in compiling this notice of Roman jurisprudence. Mr. Maine's Treatise on Roman Law is exceedingly interesting and valuable. Gibbon's famous chapter should also be read by every student. There is a fine translation of the Institutes of Justinian, which is quite accessible, by Dr. Harris of Oxford. The Code, Pandects, Institutes, and Novels, are, of course, the original authority, with the long-lost Institutes of Gaius.
In connection with the study of the Roman law, it would be well to read Sir George Bowyer's Commentaries on the Modern Civil Law; Irving, Introduction to the Study of the Civil Law; Lindley, Introduction to the Study of Jurisprudence; and Wheaton's Elements of International Law; Vattel, Le Droit des Gens.
ROMAN LITERATURE.
If the ancient civilization rivaled the modern in the realm of art, it was equally remarkable in the field of letters. It is not my object to show that it was equal, or superior, or inferior to modern literature, either in original genius or artistic excellence. That point would be difficult to settle, and unprofitable to discuss. There is no doubt as to the superior advantage which the modern world derives in consequence of the invention of printing, and the consequent diffusion of knowledge. But the question is in reference to the height which was attained by the ancient pagan intellect, unaided by Christianity. I simply wish to show that the ancients were distinguished in all departments of literature, and that some of the masterpieces of genius were created by them.
Nor is it my object to write a summary of the literature of antiquity. It would be as dull as a catalogue, or a dictionary, or a compendium of universal history for the use of schools in a single volume. And it would be as profitless. My aim is simply to show that the old civilization can boast of its glories in literature, as well as in art, and that the mind of man never more nobly asserted its power than in Greece and Rome. Our present civilization delights in those philosophers, poets, and historians, who caught their inspiration from the great pagan models which have survived the wreck of material greatness. The human intellect achieved some of its greatest feats before Christianity was born. The inborn dignity of the mind and soul was never more nobly asserted than by Plato and Aristotle, by Thucydides and Tacitus, by Homer and Virgil, by Demosthenes and Cicero. In attestation, therefore, of the glory of the ancient civilization, in the realm of literature, it is quite sufficient for our purpose to point out some of those great lights which, after the lapse of two thousand years or more, still continue to shine, and which are objects of hopeless imitation, even as they are of universal admiration. If we can show that the great heights were reached, even by a few, we prove the extent of civilization. If genius can soar, under Pagan, as well as under Christian influences, it would appear that civilization, in an intellectual point of view, may be the work of man, unaided by inspiration. It is the triumph of the native intellect of man which I wish to show.
[Sidenote: Romans borrow from the Greeks.]
Although it is my chief aim to present the magnificent civilization of the Roman empire under the emperors, I must cite the examples of Grecian as well as Roman genius, since Greece became a part of that grand empire, and since Grecian and Roman culture is mixed up and blended together. Roman youth were trained in the Grecian schools. Young men were sent to Athens and Rhodes after they had finished their education in the capital. Athens continued to be, for several hundred years after her political glory had passed away, the great university city of the world. Educated Romans were as familiar with the Greek classics as they were with those of their own country, and could talk Greek as modern Germans can talk French. The poems which kindled the enthusiasm of Roman youth are as worthy of notice as the statues which the conquerors brought from the Ionian cities, to ornament their palaces and baths. They equally attest the richness of the old civilization. And as it is the triumph of the pagan intellect which I wish to show, it matters but little whether we draw our illustrations from Greece or Rome. Without the aid of Greece, Rome could never have reached the height she attained.
[Sidenote: Richness of Greek Poetry.]
[Sidenote: The Homeric poems.]
Now how rich in poetry was classical antiquity, whether sung in the Greek or Latin languages. In all those qualities which give immortality, it has never been surpassed, whether in simplicity, in passion, in fervor, in fidelity to nature, in wit, or in imagination. It existed from the early ages, and continued to within a brief period of the fall of the empire. With the rich accumulation of ages, the Romans were familiar. They knew nothing indeed of the solitary grandeur of the Jewish muse, or the mythological myths of the Ante-Homeric songsters; but they possessed the Iliad and the Odyssey, with their wonderful truthfulness, and clear portraiture of character, their absence of all affectation, their serenity and cheerfulness, their good sense and healthful sentiments, yet so original that the germ of almost every character which has since figured in epic poetry can be found in them. We see in Homer [Footnote: Born probably at Smyrna, an Ionian city, about one hundred and fifty years after the Trojan War.] a poet of the first class, holding the same place in literature that Plato does in philosophy, or Newton in science, and exercising a mighty influence on all the ages which have succeeded him. For nearly three thousand years his immortal creations have been the delight and the inspiration of men of genius, and they are as marvelous to us as they were to the Athenians, since they are exponents of the learning, as well as of the consecrated sentiments of the heroic ages. We see no pomp of words, no far-fetched thoughts, no theatrical turgidity, no ambitious speculations, no indefinite longings; but we read the manners and customs of the primitive nations, and lessons of moral wisdom and human nature as it is, and the sights and wonders of the external world, all narrated with singular simplicity, yet marvelous artistic skill. We find accuracy, delicacy, naturalness, yet grandeur, sentiment, and beauty, such as Pheidias represented in his statues of Jupiter. No poems have ever been more popular, and none have extorted greater admiration from critics. Like Shakespeare, Homer is a kind of Bible to both the learned and unlearned among all people and ages--one of the prodigies of this world. His poems form the basis of Greek literature, and are the best understood and the most widely popular of all Grecian composition. The unconscious simplicity of the Homeric narrative, its vivid pictures, its graphic details and religious spirit, create an enthusiasm such as few works of genius can claim. Moreover, it presents a painting of society, with its simplicity and ferocity, its good and evil passions, its compassion and its fierceness, such as no other poem affords. [Footnote: The Homeric poems have been translated into nearly all the European languages, and several times into English. The last translation is by the Earl of Derby--a most remarkable work. Guizot, _Cours d'Hist. Mod_., Lecon 7me; Grote, vol. ii. p. 277; Studies in Homer, by Hon. W. E. Gladstone; Mure, _Critical Hist. of Lang. and Lit. of Greece_; Muller, _Hist, of the Lit. of Ancient Greece_, translated by Donaldson.] Nor is it necessary to speak of any other Grecian epic, when the Iliad and the Odyssey attest the perfection which was attained one hundred and twenty years before Hesiod was born. Grote thinks that the Iliad and the Odyssey were produced at some period between 850 B.C., and 776 B.C.
[Sidenote: Pindar.]
In lyrical poetry the Greeks were no less remarkable, and indeed they attained to absolute perfection, owing to the intimate connection between poetry and music. Who has surpassed Pindar in artistic skill? His triumphal odes are paeans, in which piety breaks out in expressions of the deepest awe, and the most elevated sentiments of moral wisdom. They alone of all his writings have descended to us, but all possess fragments of odes, songs, dirges, and panegyrics, which show the great excellence to which he attained. He was so celebrated that he was employed by the different states and princes of Greece to compose choral songs for special occasions, especially the public games. Although a Theban, he was held in the highest estimation by the Athenians, and was courted by kings and princes. [Footnote: Born in Thebes 522 B.C., and died probably in his eightieth year, and was contemporary with Aeschylus and the battle of Marathon.] We possess, also, fragments of Sappho, Simonides, Anacreon, and others, enough to show that, could the lyrical poetry of Greece be recovered, we should probably possess the richest collection that the world has produced.
[Sidenote: Greek dramatic poetry.]
But dramatic poetry was still more varied and remarkable. Even the great masterpieces of Sophocles and Euripides, were regarded by contemporaries as inferior to many tragedies utterly unknown to us.
[Sidenote: Aeschylus.]
The great creator of the Greek drama was Aeschylus, born at Eleusis, 525 B.C. It was not till the age of forty-one that he gained his first prize. Sixteen years afterwards, defeated by Sophocles, he quitted Athens in disgust, and went to the court of Hiero, king of Syracuse. But he was always held, even at Athens, in the highest honor, and his pieces were frequently reproduced upon the stage. It was not so much his object to amuse an audience, as to instruct and elevate it. He combined religious feeling with lofty moral sentiment. And he had unrivaled power over the realm of astonishment and terror. "At his summons," says Sir Walter Scott, "the mysterious and tremendous volume of destiny, in which is inscribed the doom of gods and men, seemed to display its leaves of iron before the appalled spectators; the more than mortal voices of Deities, Titans, and departed heroes, were heard in awful conference; heaven bowed, and its divinities descended; earth yawned and gave up the pale spectres of the dead, and yet more undefined and ghastly forms of those infernal deities who struck horror into the gods themselves." His imagination dwells in the loftiest regions of the old mythology of Greece; his tone is always pure and moral, though stern and harsh. He appeals to the most violent passions, and he is full of the boldest metaphors. In sublimity he has never been surpassed. He was in poetry, what Pheidias and Michael Angelo were in art. The critics say that his sublimity of diction is sometimes carried to an extreme, so that his language becomes inflated. His characters are sublime, like his sentiments; they were gods and heroes of colossal magnitude. His religious views were Homeric, and he sought to animate his countrymen to deeds of glory, as it became one of the generals who fought at Marathon to do. He was an unconscious genius, and worked, like Homer, without a knowledge of artistical laws. He was proud and impatient, and his poetry was religious rather than moral. He wrote seventy plays, of which only seven are extant; but these are immortal, among the greatest creations of human genius, like the dramas of Shakespeare. He died in Sicily in the sixty-ninth year of his age. The principal English translation of his plays are by Potter, Harford, and Medwin. [Footnote: See Muller and Bode, histories of Greek Literature.]
[Sidenote: Sophocles.]
The fame of Sophocles is scarcely less than that of Aeschylus. He was twenty-seven years of age when he appeared as a rival. He was born in Colonus, in the suburbs of Athens, 495 B.C., and was the contemporary of Herodotus, of Pericles, of Pindar, of Pheidias, of Socrates, of Cimon, of Euripides--the era of great men; the period of the Peloponnesian War, when every thing that was elegant and intellectual culminated at Athens. Sophocles had every element of character and person which fascinated the Greeks: beauty of person, symmetry of form, skill in gymnastics, calmness and dignity of manner, a cheerful and amiable temper, a ready wit, a meditative piety, a spontaneity of genius, an affectionate admiration for talent, and patriotic devotion to his country. His tragedies, by the universal consent of the best critics, are the perfection of the Grecian drama, and they, moreover, maintain that he has no rival, Shakespeare alone excepted, in the whole realm of dramatic poetry, unless it be Aeschylus himself, to whom he bears the same relation in poetry that Raphael does to Michael Angelo in the world of art. It was his peculiarity to excite emotions of sorrow and compassion. He loved to paint forlorn heroes. He was human in all his sympathies, not so religious as his great rival, but as severely ethical; not so sublime, but more perfect in art. His sufferers are not the victims of an inexorable destiny, but of their own follies. Nor does he even excite emotion apart from a moral end. He lived to be ninety years old, and produced the most beautiful of his tragedies in his eightieth year, the "Oedipus at Colonus." He wrote the astonishing number of one hundred and thirty plays, and carried off the first prize twenty-four times. His "Antigone" was written when he was forty-five, and when Euripides had already gained a prize. Only seven of his tragedies have survived, but these are priceless treasures. The fertility of his genius was only equaled by his artistic skill. [Footnote: Schlegel, _Lectures on Dramatic Art_; Muller, _Hist. Lit._; Donaldson's _Antigone_; Lessing, _Leben des Sophokles_; Philip Smith, article in Smith's _Dict._.]
[Sidenote: Euripides.]
Euripides, the last of the great triumvirate of the Greek tragic poets, was born at Athens, B.C. 485. He had not the sublimity of Aeschylus, nor the touching pathos of Sophocles, but, in seductive beauty and successful appeal to passion, was superior to both. Nor had he their stern simplicity. In his tragedies the passion of love predominates, nor does it breathe the purity of sentiment. It approaches rather to the tone of the modern drama. He paints the weakness and corruptions of society, and brings his subjects to the level of common life. He was the pet of the Sophists, and was pantheistic in his views. He does not paint ideal excellence, and his characters are not as men ought to be, but as they are, especially in corrupt states of society. He wrote ninety-five plays, of which eighteen are extant. Whatever objection may be urged in reference to his dramas on the score of morality, nobody can question their transcendent art, or his great originality. With the exception of Shakespeare, all succeeding dramatists have copied these three great poets, especially Racine, who took Sophocles for his model. [Footnote: Muller, Schlegel. Sir Walter Scott on the Drama; Gote, vol. viii. p. 442, Thorne, _Mag. Via. Eurip._ Potter has made a translation of all his plays.]
[Sidenote: Greek comedy.]
[Sidenote: Aristophanes.]
The Greeks were no less distinguished for comedy. Both tragedy and comedy sprung from feasts in honor of Bacchus; and as the jests and frolics were found misplaced when introduced into grave scenes, a separate province of the drama was formed, and comedy arose. At first it did not derogate from the religious purposes which were at the foundation of the Greek drama. It turned upon parodies, in which the adventures of the gods are introduced by way of sport, like the appetite of Hercules, or the cowardice of Bacchus. Then the comic authors entertained spectators by fantastic and gross displays; by the exhibition of buffoons and pantomimes. But the taste of the Athenians was too severe to relish such entertainments, and comedy passed into ridicule of public men and measures, and of the fashions of the day. The people loved to see their great men brought down to their own level. Nor did comedy flourish until the morals of society were degenerated, and ridicule had become the most effective weapon to assail prevailing follies. Comedy reached its culminating point when society was both the most corrupt and the most intellectual, as in France, when Moliere pointed his envenomed shafts against popular vices. It pertained to the age of Socrates and the Sophists, when there was great bitterness in political parties, and an irrepressible desire for novelties. In Cratinus, comedy first made herself felt as a great power, who espoused the side of Cimon against Pericles, with great bitterness and vehemence. Many were the comic writers of that age of wickedness and genius, but all yielded precedence to Aristophanes, whose plays only have reached us. Never were libels on persons of authority and influence uttered with such terrible license. He attacked the gods, the politicians, the philosophers, and the poets of Athens; even private citizens did not escape from his shafts, and women were subjects of his irony. Socrates was made the butt of his ridicule, when most revered, and Cleon in the height of his power, and Euripides when he had gained the highest prizes. He has furnished jests for Rabelais, and hints to Swift, and humor for MoliEre. In satire, in derision, in invective, and bitter scorn, he has never been surpassed. No modern capital would tolerate such unbounded license. Yet no plays were ever more popular, or more fully exposed follies which could not otherwise be reached. He is called the Father of Comedy, and his comedies are of great historical importance, although his descriptions are doubtless caricatures. He was patriotic in his intentions, and set up for a reformer. His peculiar genius shines out in his "Clouds," the greatest of his pieces, in which he attacks the Sophists. He wrote fifty-four plays. He was born B.C. 444, and died B.C. 380. His best comedies are translated by Mitchell.
Thus it would appear that in the three great departments of poetry,--the epic, the lyric, and the dramatic,--the old Greeks were great masters, and have been the teachers of all subsequent nations and ages.
The Romans, in these departments, were not their equals, but they were very successful copyists, and will bear competition with modern nations. If the Romans did not produce a Homer, they can boast of a Virgil; if they had no Pindar, they furnished a Horace, while in satire they transcended the Greeks.
[Sidenote: Naevius.]
The Romans, however, produced no poetry worthy of notice until the Greek language and literature were introduced. It was not till the fall of Tarentum that we read of a Roman poet. Livius Andronicus, a Greek slave, B.C. 240, rudely translated the Odyssey into Latin, and was the author of various plays, all of which have perished, and none of which, according to Cicero, were worth a second perusal. Still he was the first to substitute the Greek drama for the old lyrical stage poetry. One year after the first Punic War, he exhibited the first Roman play. As the creator of the drama, he deserves historical notice, though he has no claim to originality, and like a schoolmaster as he was, pedantically labored to imitate the culture of the Greeks. And his plays formed the commencement of Roman translation-literature, and naturalized the Greek metres in Latium, even though they were curiosities rather than works of art. [Footnote: Mommsen, vol. ii. b. ii. ch. xiv.] Naevius, B.C. 235, produced a play at Rome, and wrote both epic and dramatic poetry, but so little has survived, that no judgment can be formed of his merits. He was banished for his invectives against the aristocracy, who did not relish severity of comedy. [Footnote: Horace, Ep. ii. 11, 53.] Mommsen regards Naevius as the first among the Romans who deserves to be ranked among the poets. He flourished about the year 550, and closely adhered to Andronicus in metres. His language is free from stiffness and affectation, and his verses have a graceful flow. Plautus was perhaps the first great poet whom the Romans produced, and his comedies are still admired by critics, as both original and fresh. He was born in Umbria, B.C. 257, and was contemporaneous with Publius and Cneius Scipio. He died B.C. 184.
[Sidenote: Plautus.]
The first development of Roman genius in the field of poetry, seems to have been the dramatic, in which the Greek authors were copied. Plautus might be mistaken for a Greek, were it not for the painting of Roman manners. His garb is essentially Greek. He wrote one hundred and thirty plays, not always for the stage, but for the reading public. He lived about the time of the second Punic War, before the theatre was fairly established at Rome. His characters, although founded on Greek models, act, speak, and joke like Romans. He enjoyed great popularity down to the latest times of the empire, while the purity of his language, as well as the felicity of his wit, was celebrated by the ancient critics. [Footnote: Quint., x. i. Section 99.] Cicero places his wit on a par with the old Attic comedy, [Footnote: Cicero, De Off., i. 29.] while Jerome spent much time in reading his comedies, even though they afterward cost him tears of bitter regret. Modern dramatists owe much to him. Moliere has imitated him in his "Avare," and Shakespeare in his "Comedy of Errors." Lessing pronounces the "_Captivi_" to be the finest comedy ever brought upon the stage. [Footnote: Smith, _Dict. of Ant._ art. Plaut.] He has translated this play into German. It has also been admirably translated into English. The great excellence of Plautus was the masterly handling of the language, and the adjusting the parts for dramatic effect. His humor, broad and fresh, produced irresistible comic effects. No one ever surpassed him in his vocabulary of nicknames, and his happy jokes. Hence he maintained his popularity in spite of his vulgarity. [Footnote: Mommsen, vol. ii. b. iii. ch. xiv.]
[Sidenote: Terence.]
Terence shares with Plautus the throne of Roman comedy. He was a Carthaginian slave, and was born B.C. 160, but was educated by a wealthy Roman, into whose hands he fell, and ever after associated with the best society, and traveled extensively into Greece. He was greatly inferior to Plautus in originality, nor has he exerted a lasting influence like him; but he wrote comedies characterized by great purity of diction, and which have been translated into all modern languages. [Footnote: Coleman's _Terence_; Dryden, _On Dram. Poet._; Mommsen, vol. iii. b. v. ch. xiii.] Anterior to the Augustan age, no tragic production has reached us, although Quintilian speaks highly of Accius, [Footnote: Quint., x. 1. Section 97.] especially of the vigor of his style. But he merely imitated the Greeks. Terence closely copied Menander, whom Mommsen regards as the most polished, elegant, and chaste of all the poets of the newer comedy. Unlike Plautus, he draws his characters from good society, and his comedies, if not moral, were decent. Plautus wrote for the multitude; Terence for the few. Plautus delighted in a noisy dialogue and slang expressions; Terence confines himself to quiet conversation and elegant expressions, for which he was admired by Cicero and Quintilian, and other great critics. He aspired to the approval of the good, rather than the applause of the vulgar; and it is a remarkable fact that his comedies supplanted the more original productions of Plautus in the latter years of the republic, showing that the literature of the aristocracy was more prized than that of the people, even in a degenerate age. The "_Thyestes_" [Footnote: Hor., Sat. I 9; Martial, viii. 18.] of Varius, was regarded in its day as equal to Greek tragedies. Ennius composed tragedies in a vigorous style, and was regarded by the Romans as the parent of their literature, although most of his works have perished. [Footnote: Born B.C. 239.] Virgil borrowed many of his thoughts, and he was regarded as the prince of Roman song in the time of Cicero. The Latin language is greatly indebted to him. Pacuvius imitated Aeschylus in the loftiness of his style. [Footnote: Born B.C. 170] The only tragedy of the Romans which has reached us was written by Seneca the philosopher.
[Sidenote: The Aeneid.]
[Sidenote: Virgil.]
In epic poetry the Romans accomplished more, though still inferior to the Greeks. The "Aeneid" has certainly survived the material glories of Rome. It may not have come up to the exalted ideal of its author; it may be defaced by political flatteries; it may not have the force and originality of the "Iliad," but it is superior in art, and delineates the passion of love with more delicacy than can be found in any Greek author. In soundness of judgment, in tenderness of feeling, in chastened fancy, in picturesque description, in delineation of character, in matchless beauty of diction, and in splendor of versification, it has never been surpassed by any poem in any language, and proudly takes its place among the imperishable works of genius. "Availing himself of the pride and superstition of the Roman people, the poet traces the origin and establishment of the 'Eternal City,' to those heroes and actions which had enough in them of what was human and ordinary to excite the sympathies of his countrymen, intermingled with persons and circumstances of an extraordinary and superhuman character to awaken their admiration and awe. No subject could have been more happily chosen. It has been admired also for its perfect unity of action; for while the episodes command the richest variety of description, they are always subordinate to the main object of the poem, which is to impress the divine authority under which Aeneas first settled in Italy. The wrath of Juno, upon which the whole fate of Aeneas seems to turn, is at once that of a woman and a goddess; the passion of Dido, and her general character, bring us nearer to the present world; but the poet is continually introducing higher and more effectual influences, until, by the intervention of gods and men, the Trojan name is to be continued in the Roman, and thus heaven and earth are appeased." [Footnote: Thompson, _Hist. Rom. Lit._, p. 92.] No one work of man has probably had such a wide and profound influence as this poem of Virgil,--a text-book in all schools since the revival of learning, the model of the Carlovingian poets, the guide of Dante, the oracle of Tasso. [Footnote: Virgil was born seventy years before Christ, and was seven years older than Augustus. His parentage was humble, but his facilities of education were great. He was a most fortunate man, enjoying the friendship of Augustus and Maecenas, fame in his own lifetime, leisure to prosecute his studies, and ample rewards for his labors. He died at Brundusium at the age of fifty.]
[Sidenote: Horace.]
In lyrical poetry, the Romans can boast of one of the greatest masters of any age or nation. The Odes of Horace have never been transcended, and will probably remain through all the ages, the delight of scholars. They may not have the deep religious sentiment, and the unity of imagination and passion which belong to the Greek lyrical poets, but as works of art, of exquisite felicity of expression, of agreeable images, they are unrivaled. Even in the time of Juvenal, his poems were the common school books of Roman youth. Horace, like Virgil, was a favored man, enjoying the friendship of the great with ease, fame, and fortune. But his longings for retirement, and his disgust at the frivolities around him, are a sad commentary on satisfied desires. [Footnote: Born B.C. 65. The best translation of his works is by Francis; but Horace is untranslatable.] His odes compose but a small part of his writings. His epistles are the most perfect of his productions, and rank with the Georgics of Virgil and the satires of Juvenal, as the most perfect form of Roman verse. His satires are also admirable, but without the fierce vehemence and lofty indignation that characterized Juvenal. It is the folly rather than the wickedness of vice which he describes with such playful skill and such keenness of observation. He was the first to mould the Latin tongue to the Greek lyric measures. Quintilian's criticism is indorsed by all scholars. "_Lyricorum Horatius fere solus legi dignus, in verbis felicissime audax_." No poetry was ever more severely elaborated than that of Horace, and the melody of the language imparts to it a peculiar fascination. If inferior to Pindar in passion and loftiness, it glows with a more genial humanity, and with purer wit. It cannot be enjoyed fully, except by those versed in the experiences of life. Such perceive a calm wisdom, a penetrating sagacity, a sober enthusiasm, and a refined taste, which are unusual even among the masters of human thought. It is the fashion to depreciate the original merits of this poet, as well as those of Virgil and Plautus and Terence, because they derived so much assistance from the Greeks. But the Greeks borrowed from each other. Pure originality is impossible. It is the mission of art to add to its stores, without hoping to monopolize the whole realm. Even Shakespeare, the most original of modern poets, was vastly indebted to those who went before him, and even he has not escaped the hypercriticism of minute observers.
[Sidenote: Catullus.]
In this allusion to lyrical poetry, I have not spoken of Catullus, unrivaled in tender lyric, and the greatest poet before the Augustan era. He was born B.C. 87, and enjoyed the friendship of the most celebrated characters. One hundred and sixteen of his poems have come down to us, most of which are short, and many of them defiled by great coarseness and sensuality. Critics say, however, that whatever he touched he adorned; that his vigorous simplicity, pungent wit, startling invective, and felicity of expression, make him one of the great poets of the Latin language.
[Sidenote: Lucretius.]
In didactic poetry, Lucretius was preeminent, and is regarded by Schlegel as the first of Roman poets in native genius. [Footnote: Born B.C. 95, died B.C. 52. Smith's _Dict._] He lived before the Augustan era, and died at the age of forty-two by his own hand. His great poem "De Rerum Natura," is a delineation of the epicurean philosophy, and treats of all the great subjects of thought with which his age is conversant. It somewhat resembles Pope's "Essay on Man," in style and subject, but immeasurably superior in poetical genius. It is a lengthened disquisition, in seven thousand four hundred lines, of the great phenomena of the outward world. As a painter and worshiper of nature, he was superior to all the poets of antiquity. His skill in presenting abstruse speculations is marvelous, and his outbursts of poetic genius are matchless in power and beauty. Into all subjects he casts a fearless eye, and writes with sustained enthusiasm. But he was not fully appreciated by his countrymen, although no other poet has so fully brought out the power of the Latin language. Professor Ramsay, [Footnote: The translation of Lucretius into English was made by I. M. Goode, Evelyn, and Drummond.] while alluding to the melancholy tenderness of Tibullus, the exquisite ingenuity of Ovid, the inimitable felicity and taste of Horace, the gentleness and splendor of Virgil, and the vehement declamation of Juvenal, thinks that, had the verses of Lucretius perished, we should never have known that it could give utterance to the grandest conceptions with all that self-sustained majesty and harmonious swell, in which the Grecian muse rolls forth her loftiest outpourings. The eulogium of Ovid is--
"Carmina sublimis tune sunt peritura Lucreti, Exitio terras quum dabit una dies."
[Sidenote: Ovid.]
Elegiac poetry has an honorable place in Roman literature. To this school belongs Ovid, [Footnote: Born B.C. 43. Died A.D. 18.] whose "Metamorphoses" will always retain their interest. He, with that self- conscious genius common to poets, declares that his poem would be proof against sword, fire, thunder, and time,--a prediction, says Bayle, [Footnote: Bayle, _Dict._] which has not yet proved false. Niebuhr [Footnote: _Lect._, vol. ii. p. 166.] thinks that, next to Catullus, he was the most poetical of his countrymen. Milton thinks he could have surpassed Virgil had he attempted epic poetry. He was nearest to the romantic school of all the classical authors, and Chaucer, Ariosto, and Spenser owe to him great obligations. Like Pope, his verses flowed spontaneously. His "Tristia" were more admired by the Romans than his "Amores" or "Metamorphoses,"--probably from the doleful description of his exile,--a fact which shows that contemporaries are not always the best judges of real merit. His poems, great as was their genius, are deficient in the severe taste which marked the Greeks, and are immoral in their tendency. He had great advantages, but was banished by Augustus for his description of licentious love, "Carmina per libidinosa." Nor did he support exile with dignity. He died of a broken heart, and languished, like Cicero, when doomed to a similar fate. But few intellectual men have ever been able to live at a distance from the scene of their glories, and without the stimulus of high society. Chrysostom is one of the few exceptions. Ovid, as an immoral man, was justly punished.
[Sidenote: Tibullus.]
Tibullus was also a famous elegiac poet, and was born the same year as Ovid, and was the friend of Horace. He lived in retirement, and was both gentle and amiable. At his beautiful country seat he soothed his soul with the charms of literature and the simple pleasures of the country. Niebuhr pronounces his elegies doleful, [Footnote: _Lect._, vol. iii. p. 143.] but Merivale [Footnote: Hist, vol. iv. p. 602.] thinks that "the tone of tender melancholy in which he sung his unprosperous loves had a deeper and purer source than the caprices of three inconstant paramours." "His spirit is eminently religious, though it bids him fold his hands in resignation rather than open them in hope. He alone of all the great poets of his day remained undazzled by the glitter of the Caesarian usurpation, and pined away in unavailing despondency, in beholding the subjugation of his country."
[Sidenote: Propertius.]
His contemporary, Propertius, [Footnote: Born B.C. 51.] was, on the contrary, the most eager of all the flatterers of Augustus,--a man of wit and pleasure, whose object or idolatry was Cynthia, a poetess and a courtesan. He was an imitator of the Greeks, but had a great contemporary fame, [Footnote: Quint., x. 1. Section 93.] and shows great warmth of passion, but he never soared into the sublime heights of poetry, like his rival. Such were among the great elegiac poets of Rome, generally devoted to the delineation of the passion of love. The older English poets resembled them in this respect, but none of them have soared to such lofty heights as the later ones, like Wordsworth and Tennyson. It is in lyric poetry that the moderns have chiefly excelled the ancients, in variety, in elevation of sentiment, and in imagination. The grandeur and originality of the ancients were displayed rather in epic and dramatic poetry.
[Sidenote: Juvenal.]
[Sidenote: Perseus.]
In satire the Romans transcended both the Greeks and the moderns. There is nothing in any language which equals the fire, the intensity, and the bitterness of Juvenal,--not even Swift and Pope. But he flourished in the decline of literature, and has neither the taste nor elegance of the Augustan writers. He was the son of a freedman, and was born A.D. 38, and was the contemporary of Martial. He was banished by Domitian on account of a lampoon against a favorite dancer, but under the reign of Nerva he returned to Rome, and the imperial tyranny was the subject of his bitterest denunciation, next to the degradation of public morals. His great rival in satire was Horace, who laughed at follies; but he, more austere, exaggerated and denounced them. His sarcasms on women have never been equaled in severity, and we cannot but hope that they were unjust. In an historical point of view, as a delineation of the manners of his age, his satires are priceless, even like the epigrams of Martial. Satire arose with Lucilius, [Footnote: Born B.C. 148.] in the time of Marius, an age when freedom of speech was tolerated. Horace was the first to gain immortality in this department. Persius comes next, born A.D. 34, the friend of Lucan and Seneca in the time of Nero; and he painted the vices of his age when it was passing to that degradation which marked the reign of Domitian when Juvenal appeared, who, disdaining fear, boldly set forth the abominations of the times, and struck without distinction all who departed from duty and conscience. This uncompromising poet, not pliant and easy like Horace, animadverted, like an incorruptible censor, on the vices which were undermining the moral health and preparing the way for violence; on the hypocrisy of philosophers and the cruelty of tyrants; on the weakness of women and the debauchery of men. He discourses on the vanity of human wishes with the moral wisdom of Dr. Johnson, and urges self-improvement like Socrates and Epictetus. [Footnote: The best translations of Juvenal are those of Dryden, Gifford, and Badham.]
I might speak of other celebrated poets,--of Lucan, of Martial, of Petronius; but I only wish to show that the great poets of antiquity, both Greek and Roman, have never been surpassed in genius, in taste, and in art, and few were ever more honored in their lifetime by appreciating admirers showing the advanced state of civilization which was reached in every thing pertaining to the realm of thought.
But the genius of the ancients was displayed in prose composition as well as in poetry, although perfection was not so soon attained. The poets were the great creators of the languages of antiquity. It was not until they had produced their immortal works that the languages were sufficiently softened and refined to admit of great beauty in prose. But prose requires art as well as poetry. There is an artistic rhythm in the writings of the classical authors, like those of Cicero and Herodotus and Thucydides, as marked as in the beautiful measure of Homer and Virgil. Burke and Macaulay are as great artists in style as Tennyson himself. Plato did not write poetry, but his prose is as "musical as Apollo's lyre." And it is seldom that men, either in ancient or modern times, have been distinguished for both kinds of composition, although Voltaire, Schiller, Milton, Swift, and Scott are among the exceptions. Cicero, the greatest prose writer of antiquity, produced only an inferior poem, laughed at by his contemporaries. Bacon could not write poetry, with all his affluence of thought and vigor of imagination and command of language, any easier than Pope could write prose.
All sorts of prose compositions were carried to perfection by both Greeks and Romans, in history, in criticism, in philosophy, in oratory, in epistles.
[Sidenote: Herodotus.]
The earliest great prose writer among the Greeks was Herodotus, [Footnote: Born B.C. 484.] from which we may infer that History was the first form of prose composition which attained development. But Herodotus was not born until Aeschylus had gained a prize for tragedy, more than two hundred years after Simonides, the lyric poet, flourished, and probably six hundred years after Homer sung his immortal epics. After more than two thousand years the style of this great "Father of History" is admired by every critic; while his history, as a work of art, is still a study and a marvel. It is difficult to understand why no anterior work in prose is worthy of note, since the Greeks had attained a high civilization two hundred years before he appeared, and the language had reached a high point of development under Homer for more than five hundred years. The history of Herodotus was probably written in the decline of life, when his mind was enriched with great attainments in all the varied learning of his age, and when he had conversed with most of the celebrated men of the various countries which he visited. It pertains chiefly to the wars of the Greeks with the Persians; but, in his frequent episodes, which do not impair the unity of the work, he is led to speak of the manners and customs of the oriental nations. It was once the fashion to speak of Herodotus as a credulous man, who embodied the most improbable, though interesting stories. But now it is believed that no historian was ever more profound, conscientious, and careful; and all modern investigations confirm his sagacity and impartiality. He was one of the most accomplished men of antiquity, or of any age,--an enlightened and curious traveler, a profound thinker, a man of universal knowledge, familiar with the whole range of literature, art, and science in his day, acquainted with all the great men of Greece and at the courts of Asiatic princes, the friend of Sophocles, of Pericles, of Thucydides, of Aspasia, of Socrates, of Damon, of Zeno, of Pheidias, of Protagoras, of Euripides, of Polygnotus, of Anaxagoras, of Xenophon, of Alcibiades, of Lysias, of Aristophanes,--the most brilliant constellation of men of genius who were ever found together within the walls of a Grecian city, respected and admired by these great lights, all of whom he transcended in knowledge. Thus was he fitted for his task by travel, by study, and by intercourse with the great, to say nothing of his original genius, and the greatest prose work which had yet appeared in Greece was produced,--a prose epic, severe in taste, perfect in unity, rich in moral wisdom, charming in style, religious in spirit, grand in subject, without a coarse passage; simple, unaffected, and beautiful, like the narratives of the Bible; amusing, yet instructive, easy to understand, yet extending to the utmost boundaries of human research--a model for all subsequent historians. So highly was it valued by the Athenians, when their city was at the height of its splendor, that they decreed to its author ten talents, about twelve thousand dollars, for reciting it. He even went from city to city, a sort of prose rhapsodist, or like a modern lecturer, reciting his history--an honored and extraordinary man, a sort of Humboldt, having mastered every thing. And he wrote, not for fame, but to communicate the results of his inquiries, from the pure love of truth which he learned by personal investigation at Dodona, at Delphi, at Samos, at Athens, at Corinth, at Thebes, at Tyre; yea, he traveled into Egypt, Scythia, Asia Minor, Palestine, Babylonia, Italy, and the islands of the sea. His episode in Egypt is worth more, in an historical point of view, than every thing combined which has descended to us from antiquity. Herodotus was the first to give dignity to history; nor, in truthfulness, candor, and impartiality, has he ever been surpassed. His very simplicity of style is a proof of his transcendent art, even as it is the evidence of his severity of taste. [Footnote: Dahlman has written an admirable life of Herodotus; but Rawlinson's translation, with his notes, is invaluable.]
[Sidenote: Thucydides.]
To Thucydides, as an historian, the modern world also assigns a proud preeminence. He treated only of a short period, during the Peloponnesian War; but the various facts connected with that great event could only be known by the most minute and careful inquiries. He devoted twenty-seven years to the composition of his narration, and he weighed his testimony with the most scrupulous care. His style has not the fascination of Herodotus, but it is more concise. In a single volume he relates what could scarcely be compressed into eight volumes of a modern history. As a work of art, of its kind, it is unrivaled. In his description of the plague of Athens he is minute as he is simple. He abounds with rich moral reflections, and has a keen perception of human character. His pictures are striking and tragic. He is vigorous and intense, and every word he uses has a meaning. But some of his sentences are not always easily understood. One of the greatest tributes which can be paid to him is, that, according to the estimate of an able critic, [Footnote: George Long, Oxford.] we have a more exact history of a long and eventful period by Thucydides than we have of any period in modern history, equally long and eventful; and all this is compressed into a volume. [Footnote: Born 471 B.C.; lived twenty years in exile on account of a military failure.]
[Sidenote: Xenophon.]
Xenophon is the last of the trio of the Greek historians, whose writings are classical and inimitable. [Footnote: Born probably about 444 B.C.] He is characterized by great simplicity and absence of affectation. His "Anabasis," in which he describes the expedition of the younger Cyrus and the retreat of the ten thousand Greeks, is his most famous book. But his "Cyropaedia," in which the history of Cyrus is the subject, although still used as a classic in colleges for the beauty of the style, has no value as a history, since the author merely adopted the current stories of his hero without sufficient investigation. Xenophon wrote a variety of treatises and dialogues, but his "Memorabilia" of Socrates is the most valuable. All antiquity and all modern writers unite in giving to Xenophon great merit as a writer, and great moral elevation as a man.
If we pass from the Greek to the Latin historians,--to those who were as famous as the Greek, and whose merit has scarcely been transcended in our modern times, if, indeed, it has been equaled,--the great names of Sallust, of Caesar, of Livy, of Tacitus, rise up before us, together with a host of other names we have not room or disposition to present, since we only aim to show that the ancients were at least our equals in this great department of prose composition. The first great masters of the Greek language in prose were the historians, so far as their writings have descended, although it is probable that the orators may have shaped the language before them, and given it flexibility and refinement. The first great prose writers of Rome were the orators. Nor was the Latin language fully developed and polished until Cicero appeared. But we do not write a history of the language: we speak only of those who wrote immortal works in the various departments of learning.
As Herodotus did not arise until the Greek language had been already formed by the poets, so no great prose writer appeared among the Romans for a considerable time after Plautus, Terence, Ennius, and Lucretius flourished.
[Sidenote: Sallust.]
The first great historian was Sallust, the contemporary of Cicero, born B.C. 86, the year that Marius died. Q. Fabius Pictor, M. Portius Cato, L. Cal. Piso had already written works which are mentioned with respect by the Latin authors, but they were mere annalists or antiquarians, like the chroniclers of the Middle Ages, and had no claim as artists. Sallust made Thucydides his model, but fell below him in genius and elevated sentiment. He was born a plebeian, and rose to distinction by his talents, but was ejected from the Senate for his profligacy. Afterwards he made a great fortune as praetor and governor of Numidia, and lived in magnificence on the Quirinal--one of the most profligate of the literary men of antiquity. We possess but a small portion of his works, but the fragments which have come down to us show peculiar merit. He sought to penetrate the human heart, and reveal the secret motives which actuate the conduct of men. His style is brilliant, but his art is always apparent. He is clear and lively, but rhetorical. Like Voltaire, who inaugurated modern history, he thought more of style than of accuracy of facts. He was a party man, and never soared beyond his party. He aped the moralist, but erected egotism and love of pleasure into proper springs of action, and honored talent disconnected with virtue. Like Carlyle, he exalted strong men, and because they were strong. He was not comprehensive like Cicero, or philosophical like Thucydides, although he affected philosophy as he did morality. He was the first who deviated from the strict narratives of events, and also introduced much rhetorical declamation, which he puts into the mouths of his heroes. [Footnote: The best translations of this author are those by Stewart, 1806, and Murphy, 1807.] He wrote for eclat.
[Sidenote: Caesar.]
Caesar, as an historian, ranks higher, and no Roman ever wrote purer Latin than he. But his historical works, however great their merit, but feebly represent his transcendent genius--the most august name of antiquity. He was mathematician, architect, poet, philologist, orator, jurist, general, statesman--imperator. In eloquence he was only second to Cicero. The great value of his history is in the sketches of the productions, the manners, the customs, and the political state of Gaul, Britain, and Germany. His observations on military science, on the operation of sieges, and construction of bridges and military engines, are valuable. But the description of his military operations is only a studied apology for his crimes, even as the bulletins of Napoleon were set forth to show his victories in the most favorable light. His fame rests on his victories and successes as a statesman rather than on his merits as an historian, even as Louis Napoleon will live in history for his deeds rather than as the apologist of Caesar. [Footnote: See History of Caesar, by Napoleon, a work more learned than popular, however greatly he may be indebted to the labors of others.] The "Commentaries" resemble the history of Herodotus more than any other Latin production, at least in style; they are simple and unaffected, precise and elegant, plain and without pretension.
Caesar was born B.C. 100, and while I admire his genius and his generosity, I hold in detestation the ambition which led him to overturn the constitution of his country on the plea of revolutionary necessity. It is true that there was the strife of parties and factions, greedy of revenge, and still more of spoils. It was a period of "great offenses," but it was also the brightest period in Roman history, so far as pertains to the development of genius. It was more favorable to literature than the lauded "Augustan era." It was an age of free opinions, in which liberty gave her last sigh, and when heroic efforts were made to bring back the ancient virtue, and to save the state from despotism. The lives of Piso, of Milo, of Cinna, of Lepidus, of Cotta, of Dolabella, of Crassus, of Quintus Maximus, of Aquila, of Pompey, of Brutus, of Cassius, of Antony, show what extraordinary men of action were then upon the stage, both good and evil, while Varro, Cicero, Catullus, Lucretius, and Sallust gave glory to the world of letters. It may have resulted favorably to the peace of society that the imperial rule supplanted the aristocratic regime, but it was a change fatal to liberty of speech and all independent action--a change, the good of which was on the outside, and in favor of material interests, but the evil of which was internal, and consumed secretly, but surely, the real greatness of the empire.
[Sidenote: Prose composition.]
[Sidenote: High social position of historians.]
The Augustan age, though it produced a constellation of poets who shed glory upon the throne before which they prostrated themselves in abject homage, like the courtiers of Louis XIV., still was unfavorable to prose composition,--to history as well as eloquence. Of the historians, Livy is the only one whose writings are known to us, and only fragments of his history. [Footnote: Born B.C. 59.] He was a man of distinction at court, and had a great literary reputation--so great that a Spaniard traveled from Cadiz on purpose to see him. Most of the great historians of the world have occupied places of honor and rank, which were given to them not as prizes for literary successes, but for the experience, knowledge, and culture which high social position and ample means secured. Herodotus lived in courts; Thucydides was a great general, also Xenophon; Caesar wrote his own exploits; Sallust was praetor and governor; Livy was tutor to Claudius; Tacitus was praetor and consul suffectus; Eusebius was bishop and favorite of Constantine; Ammianus was the friend of the Emperor Julian; Gregory of Tours was one of the leading prelates of the West; Froissart attended in person, as a man of rank, the military expeditions of his day; Clarendon was Lord Chancellor; Burnet was a bishop and favorite of William III.; Thiers and Guizot both were prime ministers; while Gibbon, Hume, Robertson, Macaulay, Grote, Milman, Neander, Niebuhr, Muller, Dahlman, Buckle, Prescott, Irving, Bancroft, Motley, have all been men of wealth or position. Nor do I remember a single illustrious historian who has been poor and neglected.
[Sidenote: Livy.]
The ancients regarded Livy as the greatest of historians,--an opinion not indorsed by modern critics, on account of his inaccuracies. But his narrative is always interesting, and his language pure. He did not sift evidence like Grote, nor generalize like Gibbon; but he was, like Voltaire and Macaulay, an artist in style, and possessed undoubted genius. His annals are comprised in one hundred and forty-two books, extending from the foundation of the city to the death of Drusus, B.C. 9, of which only thirty-five have come down to us--an impressive commentary on the vandalism of the Middle Ages, and the ignorance of the monks who could not preserve so great a treasure. "His story flows in a calm, clear, sparkling current, with every charm which simplicity and ease can give." He delineates character with great clearness and power; his speeches are noble rhetorical compositions; his sentences are rhythmical cadences. He was not a critical historian, like Herodotus, for he took his materials secondhand, and he was ignorant of geography; nor did he write with the exalted ideal of Thucydides, but as a painter of beautiful forms, which only a rich imagination could conjure, he is unrivaled in the history of literature. Moreover, he was honest and sound in heart, and was just and impartial in reference to those facts with which he was conversant.
[Sidenote: Tacitus.]
In the estimation of modern critics, the highest rank, as an historian, is assigned to Tacitus, and it would be difficult to find his rival in any age or country. He was born A.D. 57, about forty-three years after the death of Augustus. He belonged to the equestrian rank, and was a man of consular dignity. He had every facility for literary labors that leisure, wealth, friends, and social position could give, and he lived under a reign when truth could be told.
The extant works of this great writer are the "Life of Agricola," his father-in-law; his "Annales," which commence with the death of Augustus, A.D. 14, and close with the death of Nero, A.D. 68; the "Historiae," which comprise the period from the second consulate of Galba, A.D. 68, to the death of Domitian; and a treatise on the Germans.
[Sidenote: Histories of Tacitus.]
His histories describe Rome in the fullness of imperial glory, when the will of one man was the supreme law of the empire. He also wrote of events when liberty had fled, and the yoke of despotism was nearly insupportable. He describes a period of great moral degradation, nor does he hesitate to lift the veil of hypocrisy in which his generation had wrapped itself. He fearlessly exposes the cruelties and iniquities of the early emperors, and writes with judicial impartiality respecting all the great characters he describes. No ancient writer shows greater moral dignity and integrity of purpose than Tacitus. In point of artistic unity he is superior to Livy and equal to Thucydides, whom he resembles in conciseness of style. His distinguishing excellence as an historian is his sagacity and impartiality. Nothing escapes his penetrating eye; and he inflicts merited chastisement on the tyrants who reveled in the prostrated liberties of his country, while he immortalizes those few who were faithful to duty and conscience in a degenerate age. But his writings were not so popular as those of Livy. Neither princes nor people relished his intellectual independence and moral elevation. He does not satisfy Dr. Arnold, who thinks he ought to have been better versed in the history of the Jews, and who dislikes his speeches because they were fictitious.
[Sidenote: Qualities which give immortality to historians.]
Neither the Latin nor Greek historians are admired by those dry critics, who seek to give to rare antiquarian matter a disproportionate importance, and to make this matter as fixed and certain as the truths of natural science. History can never be other than an approximation to the truth, even when it relates to the events and characters of our own age. History does not give positive knowledge which cannot be disputed except in general terms. We know that Caesar was ambitious, but we do not know whether he was more or less so than Pompey, nor do we know how far he was justified in his usurpation. A great history must have other merits than mere accuracy, or antiquarian research, or display of authorities and notes. It must be a work of art, and art has reference to style and language, to grouping of details and richness of illustration, to eloquence and poetry and beauty. A dry history, if ever so learned, will never be read; it will only be consulted, like a law- book, or Mosheim's "Commentaries." We wish life in history, and it is for the life that the writings of Livy and Tacitus will be perpetuated. Voltaire and Schiller have no great merit as historians, in a technical sense, but the "Life of Charles XII." and the "Thirty Years' War" are still classics. Neander has written one of the most searching and recondite histories of modern times, but it is too dry, too deficient in art, to be cherished, and may pass away, like the voluminous writings of Varro, the most learned of the Romans. It is the art which is immortal in a book, not the knowledge, or even the thoughts. What keeps alive the "Provincial Letters"? It is the style, the irony, the elegance. It is the exquisite delineation of character, the moral wisdom, the purity and force of language, the artistic arrangement, and the lively and interesting narratives, appealing to all minds, like the "Arabian Nights," or Froissart's "Chronicles," which give immortality to the classic authors of antiquity. We will not let them perish, because they amuse us, and inspire us. Livy doubtless was too ambitious in aspiring to write accurately the whole history of his country. He would have been wiser had he confined himself to a particular epoch, of which he was conversant, like Tacitus and Thucydides. But it is taking a narrow view of history to make all writers after the same pattern, even as it would be bigoted to make all Christians belong to the same sect. Some will be remarkable for style, others for learning, and others again for moral and philosophical wisdom. Some will be minute, and others generalizing. Some dig out a multiplicity of facts without apparent object, and others induce from those facts. Some will make essays, and others chronicles. We have need of all styles and all kinds of excellence. A great and original thinker may not have the time or opportunity or taste for a minute and searching criticism of original authorities; but he may be able to generalize previously established facts, so as to draw most valuable moral instruction. History is a boundless field of inquiry. No man can master it, in all its departments and periods. What he gains in minute details, he is apt to lose in generalization. If he attempts to embody too much learning, he may be deficient in originality; if he would say every thing, he is apt to be dry; if he elaborates too much, he loses life. Society, too, requires different kinds and styles of history,--history for students, history for ladies, histories for old men, histories for young men, histories to amuse, and histories to instruct. If all men were to write history according to Dr. Arnold's views, then we should have histories of interest only to classical scholars. A fellow of Christ Church may demand authorities, even if he never consults one of them, but a member of Congress may wish to see learning embodied in the text, and animated by genius, after the fashion of the ancient historians, who never quoted their sources of knowledge, and who were valued for the richness of thoughts and artistic beauty of style. The ages in which they flourished, attached no value to pedantic displays of labor, or evidences of learning paraded in foot-notes.
[Sidenote: Greatness of the ancient historians.]
Thus the great historians whom I have alluded to, both Greek and Latin, have few equals and no superiors, in our own times, in those things which are most to be admired. They were not pedants, but men of immense genius and learning, who blended the profoundest principles of moral wisdom with the most fascinating narratives, men universally popular among learned and unlearned, and men who were great artists in style, and masters of the language in which they wrote. We claim a superiority to them, because we are more recondite and critical; but the decline of Roman literature can be dated to times when commentaries became the fashion. We improve on commentaries. They are chiefly confined to biblical questions. We write dictionaries and encyclopedias. In this respect we are superior to the ancients. Our latest fashion of histories makes them very long, and very uncertain, containing much irrelevant matter, and more remarkable for learning than for genius, or elegance of diction. Yet Macaulay, Prescott, and Motley have few equals among the ancients in interest or artistic beauty.
[Sidenote: Suetonius.]
[Sidenote: Marcellinus.]
Rome can boast of no great historian after Tacitus, who should have belonged to the Ciceronian epoch. Suetonius, born about the year A.D. 70, shortly after Nero's death, was rather a biographer than historian. Nor as a biographer does he take a high rank. His "Lives of the Caesars," like Diogenes Laertius' "Lives of the Philosophers," are rather anecdotical than historical. L. A. Florus, who flourished during the reign of Trajan, has left a series of sketches of the different wars from the days of Romulus to those of Augustus. Frontinus epitomized the large histories of Pompeius. Marcellinus wrote a history from Nerva to Valens, and is often quoted by Gibbon. But none wrote who should be adduced as examples of the triumph of genius, except Sallust, Caesar, Livy, and Tacitus.
[Sidenote: Ancient orators.]
[Sidenote: Ancient eloquence.]
There is another field of prose compositions in which the Greeks and Romans gained great distinction, and proved themselves equal to any nation of modern times, and this was that of eloquence. It is true we have not a rich collection of ancient speeches. But we have every reason to believe that both Greeks and Romans were most severely trained in the art of public speaking, and that forensic eloquence was highly prized and munificently rewarded. It commenced with democratic institutions, and flourished as long as the people were a great power in the state. It declined whenever and as soon as tyrants bore rule. Eloquence and liberty flourished together; nor can there be eloquence when there is not freedom of debate. In the fifth century before Christ--the first century of democracy--great orators arose, for without the power and the opportunity of defending himself against accusation, no man could hold an ascendent position. Socrates insisted upon the gift of oratory to a general in the army, [Footnote: Xen. _Mem._, iii. 3, 11.] as well as to a leader in political life. In Athens the courts of justice were numerous, and those who could not defend themselves were obliged to secure the services of those who were trained in the use of public speaking. Thus the lawyers arose, among whom eloquence has been more in demand, and more richly paid than in any other class, certainly of ancient times. Rhetoric became connected with dialectics, and in Greece, Sicily, and Italy, both were most extensively cultivated. Empedocles was distinguished as much for rhetoric as for philosophy. It was not, however, in the courts of law that eloquence displayed the greatest fire and passion, but in political assemblies. These could only coexist with liberty; and a democracy was more favorable than an aristocracy to a large concourse of citizens. In the Grecian republics, eloquence as an art, may be said to have been born. It was nursed and fed by political agitations; by the strife of parties. It arose from appeals to the people as a source of power; and, when the people were not cultivated, it appealed chiefly to popular passions and prejudices. When they were enlightened, it appealed to interests.
[Sidenote: Pericles.]
It was in Athens, where there existed the purest form of democratic institutions, that eloquence rose to the loftiest heights in the ancient world, so far as eloquence appeals to popular passions. Pericles, the greatest statesman of Greece, was celebrated for his eloquence, although no specimens remain to us. It was conceded by the ancient authors, that his oratory was of the highest kind, and the epithet of Olympian was given him as carrying the weapons of Zeus upon his tongue. [Footnote: Plutarch; Cic. De Orat., iii. 34; Quin., x. i. Section 82; Plat. Phed., p. 262.] His voice was sweet, and his utterance distinct and rapid. Pisistratus was also famous for his eloquence, although he was a usurper and a tyrant. Isocrates [Footnote: Born 436 B.C.] was a professed rhetorician, and endeavored to base it upon sound moral principles, and rescue it from the influence of the Sophists. He was the great teacher of the most eminent statesmen of his day. Twenty- one of his orations have come down to us, and they are excessively polished and elaborated; but they were written to be read; they were not extemporary. His language is the purest and most refined Attic dialect. Lysias [Footnote: Born B.C. 458.] was a fertile writer of orations also, and he is reputed to have produced as many as four hundred and twenty- five. Of these only thirty-five are extant. They are characterized by peculiar gracefulness and elegance, which did not interfere with strength. So able were these orations, that only two were unsuccessful. They were so pure that they were regarded as the best canon of the Attic idiom. [Footnote: Dion. Lys., ii. 3.]
[Sidenote: Demosthenes.]
But all the orators of Greece--and Greece was the land of orators--gave way to Demosthenes, born B.C. 385. He received a good education, and is said to have been instructed in philosophy by Plato, and in eloquence by Isocrates. But it is more probable that he privately prepared himself for his brilliant career. As soon as he attained his majority, he brought suits against the men whom his father had appointed his guardians for their waste of property, and was, after two years, successful, conducting the prosecution himself. It was not until the age of thirty that he appeared as a speaker in the public assembly on political matters, and he enjoyed universal respect, and became one of the leading statesmen of Athens, and henceforth he took an active part in every question that concerned the state. He especially distinguished himself in his speeches against Macedonian aggrandizements, and his Philippics are, perhaps, the most brilliant of his orations. But the cause which he advocated was unfortunate. The battle of Cheronea, B.C. 338, put an end to the independence of Greece, and Philip of Macedon was all-powerful. For this catastrophe Demosthenes was somewhat responsible, but his motives were pure and his patriotism lofty, and he retained the confidence of his countrymen. Accused by Aeschines, he delivered his famous Oration on the Crown. Afterwards, during the supremacy of Alexander, he was again accused, and suffered exile. Recalled from exile, on the death of Alexander, he roused himself for the deliverance of Greece, without success, and, hunted by his enemies, he took poison in the sixty-third year of his age, having vainly contended for the freedom of his country,--one of the noblest spirits of antiquity, spotless in his public career, and lofty in his private life. As an orator, he has not probably been equaled by any man of any country. By his contemporaries he was regarded as faultless as a public speaker, and when it is remembered that he struggled against physical difficulties which, in the early part of his career, would have utterly discouraged any ordinary man, we feel that he deserves the highest commendation. He never spoke without preparation, and most of his orations were severely elaborated. He never trusted to the impulse of the occasion. And all his orations exhibit him as a pure and noble patriot, and are full of the loftiest sentiments. He was a great artist, and his oratorical successes were greatly owing to the arrangement of his speeches and the application of the strongest arguments in their proper places. Added to this moral and intellectual superiority was the "magic power of his language, majestic and simple at the same time, rich yet not bombastic, strange and yet familiar, solemn without being ornamented, grave and yet pleasing, concise and yet fluent, sweet and yet impressive, which altogether carried away the minds of his hearers." [Footnote: Leonhard Schmitz.] His orations were most highly prized by the ancients, who wrote innumerable commentaries on them, but most of these criticisms are lost. Sixty, however, of these great productions of genius have come down to us, and are contained in the various collections of the Attic orators by Aldus, Stephens, Taylor, Reiske, Dukas, Bekker, Dobson, and Sauppe. Demosthenes, like other orators, first became known as the composer of speeches for litigants; but his great fame was based on the orations he pronounced in great political emergencies. His rival was Aeschines, but he was vastly inferior to Demosthenes, although bold, vigorous, and brilliant. Indeed, the opinions of mankind, for two thousand years, have been unanimous in ascribing to Demosthenes the highest position as an orator of all the men of ancient and modern times. David Hume says of him, "that, could his manner be copied, its success would be infallible over a modern audience." "It is rapid harmony exactly adjusted to the sense. It is vehement reasoning, without any appearance of art. It is disdain, anger, boldness, freedom involved in a continual stream of argument; so that, of all human productions, his orations present to us the models which approach the nearest to perfection." [Footnote: _Dissertation of Lord Brougham on the Eloquence of the Ancients._]
[Sidenote: Roman orators.]
It is probable that the Romans were behind the Athenians in all the arts of rhetoric; and yet in the days of the republic celebrated orators arose, called out by the practice of the law and political meetings. It was, in fact, in forensic eloquence that Latin prose first appears as a cultivated language; for the forum was to the Romans what libraries are to us. And the art of public speaking was very early developed. Cato, Laelius, Carbo, and the Gracchi are said to have been majestic and harmonious in speech. Their merits were eclipsed by Antonius, Crassus, Cotta, Sulpitius, and Hortensius. The last had a very brilliant career as an orator, although his orations were too florid to be read. Caesar was also distinguished for his eloquence, the characteristics of which were force and purity. Caelius was noted for lofty sentiment; Brutus for philosophical wisdom; Callidus for a delicate and harmonious style, and Calvus for sententious force.
[Sidenote: Cicero.]
But all the Roman orators yielded to Cicero, as the Greeks did to Demosthenes. These two men are always coupled together when allusion is made to eloquence. They were preeminent in the ancient world, and have never been equaled in the modern.
Cicero was not probably equal to his great Grecian rival in vehemence, in force, in fiery argument, which swept every thing away before him; and he was not probably equal to him in original genius; but he was his superior in learning, in culture, and in breadth. [Footnote: Born B.C. 106.] He distinguished himself very early as an advocate; but his first great public effort was in the prosecution of Verres for corruption. Although defended by Hortensius, and the whole influence of the Metelli and other powerful families, Cicero gained his cause,--more fortunate than Burke in his prosecution of Warren Hastings, who was also sustained by powerful interests and families. Burke also resembled Cicero in his peculiarities and in his fortunes more than any modern orator. His speech on the Manilian law, when he appeared as a political orator, greatly contributed to his popularity. I need not describe his memorable career; his successive election to all the highest offices of state, his detection of Catiline's conspiracy, his opposition to turbulent and ambitious partisans, his alienations and friendships, his brilliant career as a statesman, his misfortunes and sorrows, his exile and recall, his splendid services to the state, his greatness and his defects, his virtues and weaknesses, his triumphs and martyrdom. These are foreign to my purpose. No man of heathen antiquity is better known to us, and no man, by pure genius, ever won more glorious laurels. His life and labors are immortal. His virtues and services are embalmed in the heart of the world. Few men ever performed greater literary labors, and in most of its departments. Next to Aristotle, he was the most learned man of antiquity, but performed more varied labors than he, since he was not only great as a writer and speaker, but as a statesman, and was the most conspicuous man in Rome after Pompey and Caesar. He may not have had the moral greatness of Socrates, nor the philosophical genius of Plato, nor the overpowering eloquence of Demosthenes, but he was a master of all the wisdom of antiquity. Even civil law, the great science of the Romans, became interesting in his hands, and is divested of its dryness and technicality. He popularized history, and paid honor to all art, even to the stage. He made the Romans conversant with the philosophy of Greece, and systematized the various speculations. He may not have added to the science, but no Roman, after him, understood so well the practical bearing of all the various systems. His glory is purely intellectual, and it was by pure genius that he rose to his exalted position and influence.
But it was in forensic eloquence that he was preeminent, and in which he had but one equal in ancient times. Roman eloquence culminated in him. He composed about eighty orations, of which fifty-nine are preserved. Some were delivered from the rostrum to the people, and some in the Senate. Some were mere philippics, as savage in denunciation as those of Demosthenes. Some were laudatory; some were judicial; but all were severely logical, full of historical allusion, profound in philosophical wisdom, and pervaded with the spirit of patriotism. "He goes round and round his object, surveys it in every light, examines it in all its parts, retires and then advances, compares and contrasts it, illustrates, confirms, and enforces it, till the hearer feels ashamed of doubting a position which seems built on a foundation so strictly argumentative. And having established his case, he opens upon his opponent a discharge of raillery so delicate and good natured that it is impossible for the latter to maintain his ground against it; or, when the subject is too grave, he colors his exaggerations with all the bitterness of irony and vehemence of passion. But the appeal to the gentler emotions is reserved for the close of the oration, as in the defense of Cluentius, Caelius, Milo, and Flaccus; the most striking instances of which are the poetical bursts of feeling with which he addresses his client, Plaucius, and his picture of the desolate condition of the vestal Fonteia, should her brother be condemned. At other times his peroration contains more heroic and elevated sentiments, as in the invocation of the Alban Altars, and in his defense of Sextius, and that on liberty at the close of the third Philippic." [Footnote: Newman, _Hist. Rom. Lit._, p. 305.]
Critics have uniformly admired his style as peculiarly suited to the Latin language, which, being scanty and unmusical, requires more redundancy than the Greek. The simplicity of the Attic writers would make Latin composition bold and tame. To be perspicuous, the Latin must be full. Thus Arnold thinks that what Tacitus gained in energy he lost in elegance and perspicuity. But Cicero, dealing with a barren and unphilosophical language, enriched it with circumlocutions and metaphors, while he formed it of harsh and uncouth expressions, and thus became the greatest master of composition the world has seen. He was a great artist, making use of his scanty materials to the best effect; and since he could not attain the elegance of the Greeks, he sought to excel them in vigor. He had absolute control over the resources of his vernacular tongue, and not only unrivaled skill in composition, but tact and judgment. Thus he was generally successful, in spite of the venality and corruption of the times. The courts of justice were the scene of his earliest triumphs; nor did he speak from the rostra until he was praetor on mere political questions, as in reference to the Manilian and Agrarian laws. It is in his political discourses that he rises to the highest ranks. In his speeches against Verres, Catiline, and Antony, he kindles in his countrymen lofty feelings for the honor of his country, and abhorrence of tyranny and corruption. Indeed, he hated bloodshed, injustice, and strife, and beheld the downfall of liberty with indescribable sorrow.
Cicero held a very exalted position as a philosophical writer and critic; but we defer what we have to say on this point until we speak of the philosophy of the ancients. Upon eloquence his main efforts were, however, directed, and eloquence was the most perfect fruit of his talents. Nor can we here speak of Cicero as a man. He has his admirers and detractors. He had great faults and weaknesses as well as virtues. He was egotistical, vain, and vacillating. But he was industrious, amiable, witty, and public spirited. In his official position he was incorruptible. He was no soldier, but he had a greater than a warrior's excellence. In spite of his faults, his name is one of the brightest of the ancients. His integrity was never impeached, even in an age of unparalleled corruption, and he was pure in morals. He was free from rancor and jealousy, was true in his friendships, and indulgent to his dependents. [Footnote: Professor Ramsay, of Glasgow, has written a most admirable article on Cicero in Smith's Dictionary. It is very full and impartial. Cicero's own writings are the best commentary on his life. Plutarch has afforded much anecdote. Forsythe is the last work of erudition. The critics sneer at Middleton's _Life of Cicero_; but it has lasted one hundred years. It is, perhaps, too eulogistic. Drumann is said to have most completely exhausted his subject in his Geschichte Roms.]
Thus in oratory, as in history, the ancients can boast of most illustrious examples, never even equaled. Still, we cannot tell the comparative merits of the great classical orators of antiquity, with the more distinguished of our times. Only Mirabeau, Pitt, Fox, Burke, Brougham, Webster, and Clay, can even be compared with them. In power of moving the people, some of our modern reformers and agitators may be mentioned favorably; but their harangues are comparatively tame when read.
[Sidenote: Varro.]
In philosophy, the Greeks and Romans distinguished themselves more than even in poetry, or history, or eloquence. Their speculations pertained to the loftiest subjects which ever tasked the intellect of man. But this great department deserves a separate chapter. There were respectable writers, too, in various other departments of literature, but no very great names whose writings have descended to us. Contemporaries had an exalted opinion of Varro, who was considered the most learned of the Romans, as well as their most voluminous author. He was born ten years before Cicero, and he is highly commended by Augustine. [Footnote: Born B.C. 116; _Civ. Dei_., vi. 2.] He was entirely devoted to literature, took no interest in passing events, and lived to a good old age. St. Augustine says of him, "that he wrote so much that one wonders how he had time to read; and that he read so much, we are astonished how he found time to write." He composed four hundred and ninety books. Of these only one has descended to us entire--"De Re Rustica"--written at the age of eighty; but it is the best treatise which has come down from antiquity on ancient agriculture. We have parts of his other books, and we know of books which have entirely perished which, for their information, would be invaluable; especially his "Divine Antiquities," in sixteen books--his great work, from which St. Augustine drew his materials for his "City of God." He wrote treatises on language, on the poets, on philosophy, on geography, and various other subjects. He wrote satire and criticism. But although his writings were learned, his style was so bad that the ages have failed to preserve him. It is singular that the truly immortal books are most valued for their artistic excellences. No man, however great his genius, can afford to be dull. Style is to written composition, what delivery is to a public speaker. John Foster, one of the finest intellects of the last generation, preached to a "handful" of hearers, while "Satan" Montgomery drew ecstatic crowds. Nobody goes to hear the man of thoughts, every body to hear the man of words, being repelled or attracted by manner.
[Sidenote: Seneca.]
Seneca was another great writer among the Romans, but he belongs to the domain of philosophy, although it is his ethical works which have given him immortality, as may be truly said of Socrates and Epictetus, although they are usually classed among the philosophers. He was a Spaniard, and was born a few years before the Christian era, was a lawyer and a rhetorician, a teacher and minister of Nero. It was his misfortune to know one of the most detestable princes that ever scandalized humanity, and it is not to his credit to have accumulated, in four years, one of the largest fortunes in Rome, while serving such a master. But since he lived to experience his ingratitude, he is more commonly regarded as a martyr. Had he lived in the republican period, he would have been a great orator. He wrote voluminously on many subjects, and was devoted to a literary life. He rejected the superstitions of his country, and looked upon the ritualism of religion as a mere fashion; but his religion was a mere deism, and he dishonored his own virtues by a compliance with the vices of others. He saw much of life, and died at fifty-three. What is remarkable in his writings, which are clear but labored, is, that under pagan influences and imperial tyranny, he should have presented such lofty moral truth; and it is a mark of almost transcendent talent that he should, unaided by Christianity, have soared so high in the realm of ethical inquiry. Nor is it easy to find any modern author who has treated great questions in so attractive a way.
[Sidenote: Quintilian.]
Quintilian is a Latin classic, and belonged to the class of rhetoricians, and should have been mentioned among the orators, like Lysias the Greek, a teacher, however, of eloquence, rather than an orator. He was born A.D. 40, and taught the younger Pliny, also two nephews of Domitian, receiving a regular salary from the imperial treasury. His great work is a complete system of rhetoric. "_Institutiones Oratoriae_" is one of the clearest and fullest of all rhetorical manuals ever written in any language, although, as a literary production, inferior to the "_De Oratore_" of Cicero. It is very practical and sensible, and a complete compendium of every topic likely to be useful in the education of an aspirant for the honors of eloquence. In systematic arrangement, it falls short of a similar work by Aristotle; but it is celebrated for its sound judgment and keen discrimination, showing great reading and reflection. He should be viewed as a critic rather than as a rhetorician, since he entered into the merits and defects of the great masters of Greek and Roman literature. In his peculiar province he has had no superior. Like Cicero, or Demosthenes, or Plato, or Thucydides, or Tacitus, he would be a great man if he lived in our times, and could proudly challenge the modern world to produce a better teacher than he in the art of public speaking.
[Sidenote: Lucian.]
There are other writers of immense fame, who do not represent any particular class in the field of literature, which can be compared with the modern. But I can only draw attention to Lucian, a witty and voluminous Greek author, who lived in the reign of Commodus, wrote rhetorical, critical, and biographical works, and even romances which have given hints to modern authors. But his fame rests on his "Dialogues," intended to ridicule the heathen philosophy and religion, and which show him to have been one of the great masters of ancient satire and mockery. His style of dialogue--a combination of Plato and Aristophanes--is not much used by modern writers, and his peculiar kind of ridicule is reserved now for the stage. Yet he cannot be called a writer of comedy, like MoliEre. He resembles Rabelais and Swift more than any other modern writers, and has their indignant wit, indecent jokes, and pungent sarcasms. He paints, like Juvenal, the vices and follies of his time, and exposes the hypocrisy that reigns in the high places of fashion and power. His dialogues have been imitated by Fontanelle and Lord Lyttleton, but they do not possess his humor or pungency. Lucian does not grapple with great truths, but contents himself in ridiculing those who have proclaimed them; and, in his cold cynicism, depreciates human knowledge, and all the great moral teachers of mankind. He is even shallow and flippant upon Socrates. But he was well read in human nature, and superficially acquainted with all the learning of antiquity. In wit and sarcasm, he may be compared with Voltaire, and his end was the same, to demolish and pull down, without substituting any thing in its stead. His skepticism was universal, and extended to religion, to philosophy, and to every thing venerated and ancient. His purity of style was admired by Erasmus, and he has been translated into most European languages. The best English version is rendered by Dr. Franklin, London, 2 vols. 4to. In strong contrast to the "Dialogues" is the "City of God," by Saint Augustine, in which he demolishes with keener ridicule all the gods of antiquity, but substitutes instead the knowledge of the true God.
Thus the Romans, as well as Greeks, produced works in all departments of literature which will bear comparison with the masterpieces of modern times. And where would have been the literature of the early Church, or of modern nations, had not the great original writers of Athens and Rome been our schoolmasters? And when we further remember that their glorious literature was created by native genius, without the aid of Christianity, we are filled with amazement, and may almost be excused if we deify the reason of man. At least we are assured that literature as well as art may flourish under pagan influences, and that Christianity has a higher mission than the culture of the mind. Religious skepticism cannot be disarmed if we appeal to Christianity as the test of intellectual culture. The realm of reason has no fairer fields than those which are adorned by pagan art. Nor have greater triumphs of intellect been witnessed in these, our Christian times, than among that class which is the least influenced by Christian ideas. Some of the proudest trophies of genius have been won by infidels, or by men stigmatized as such. Witness Voltaire, Rousseau, Diderot, Hegel, Fichte, Gibbon, Hume, Buckle. And then how many great works are written without the inspiration or the spirit of a living Christianity! How little Bulwer, or Byron, or Dumas, or Goethe owe, apparently, to Christian teachings! Is Emerson superior to Epictetus, in an ethical point of view? Was Franklin a great philosopher, or Jefferson a great statesman, because they were surrounded by Christian examples? May there not be the greatest practical infidelity, with the most artistic beauty and native reach of thought? Milton justly ascribes the most sublime intelligence to Satan and his angels on the point of rebellion against the majesty of Heaven. A great genius may be kindled by the fires of discontent and ambition, which will quicken the intellectual faculties, even while they consume the soul, and spread their devastating influence on the homes and hopes of man.
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RERERENCES.--There are no better authorities than the classical authors themselves, and their works must be studied in order to comprehend the spirit of ancient literature. Modern historians of Roman literature are merely critics, like Drumann, Schlegel, Niebuhr, Muller, Mommsen, Mure, Arnold, Dunlap, and Thompson. Nor do I know of an exhaustive history of Roman literature in the English language. Yet nearly every great writer has occasional criticisms, entitled to respect. The Germans, in this department, have no equals. As critics and commentators they are unrivaled.