existing common property. But the segmentation of handicraft from agriculture; the ever wider expansion of commerce; the founding of cities, rendered necessary by both of these; the conquest of booty and prisoners of war, the latter of which directly affected the household, – all of these tore to shreds the conditions and bonds of eld. Handicraft had gradually subdivided itself into a larger number of separate trades – weaving, pottery, iron-forging, the preparation of arms, house and shipbuilding, etc. Accordingly, it pushed toward another organization. The ever further introduction of slavery, the admittance of strangers into the community, – these were all so many new and additional elements that rendered the old constitution of society ever more impossible.
Along with private property and the personal right of inheritance, class distinctions and class contrasts came into existence. Rich property-owners drew together against those who owned less, or nothing. The former sought to get into their own hands the public offices of the new commonwealth, and to make them hereditary. Money, now become necessary, created thitherto unknown forms of indebtedness. Wars against enemies from without, and conflicting interests within, as well as the various interests and relations which agriculture, handicraft and commerce mutually produced rendered necessary complicated rules of right, they demanded special organs to guard the orderly movement of the social machinery, and to settle disputes. The same held good for the relations of master and slave, creditor and debtor. A power, accordingly, became necessary to supervise, lead, regulate and harmonize all these relations, with authority to protect, and, when needed, to punish. Thus rose the State, the product, accordingly of the conflicting interests that sprang up in the new social order. Its administration naturally fell into the hands of those who had the liveliest interest in its establishment, and who, in virtue of their social power, possessed the greatest influence, – the rich. Aristocracy of property and democracy confronted each other, accordingly, even there where externally complete equality of political rights existed.
Under the mother-right, there was no written law. The relations were simple, and custom was held sacred. Under the new, and much more complicated order, written law was one of the most important requirements; and special organs became necessary to administer it. In the measure that the legal relations and legal conditions gained in intricacy, a special class of people gathered shape, who made the study of the law their special vocation, and who finally had a special interest in rendering the law ever more complicated. Then arose the men learned in the laws, the jurists, who, due to the importance of the statutory law to the whole of society, rose to influential social rank. The new system of rights found in the course of time its classic expression in the Roman State, whence the influence that Roman law exercises down to the present.
The institution of the State is, accordingly, the necessary result of a social order, that, standing upon the higher plane of the subdivision of labor, is broken up into a large number of occupations, animated by different, frequently conflicting, interests, and hence has the oppression of the weaker for a consequence. This fact was recognized even by an Arabian tribe, the Nabateans, who, according to Diodorus, established the regulation not to sow, not to plant, to drink no wine, and to build no houses, but to live in tents, because if those things were done, they could be easily compelled to obey by a superior power (the power of the State). Likewise among the Rachebites, the descendants of the father-in-law of Moses, there existed similar prescriptions.17 Aye, the whole Mosaic system of laws is aimed at preventing the Jews from moving out of an agricultural state, because otherwise, so the legislators feared, their democratic-communistic society would go under. Hence the selection of the "Promised Land" in a region bounded, on one side, by a not very accessible mountain range, the Lebanon; on the other side, South and East, by but slightly fertile stretches of land, partly by deserts; – a region, accordingly, that rendered isolation possible. Hence came the keeping of the Jews away from the sea, which favored commerce, colonization and the accumulation of wealth; hence the rigid laws concerning seclusion from other peoples, the severe regulations against foreign marriages, the poor laws, the agrarian laws, the jubileum, – all of them provisions calculated to prevent the accumulation of great wealth by the individual. The Jewish people were to be kept in permanent disability ever to become the builders of a real State. Hence it happens that the tribal organization, which rested upon the gentile order, remained in force with them till its complete dissolution, and continues to affect them even now.
It seems that the Latin tribes, which took a hand in the founding of Rome, had long passed beyond the stage of the mother-right. Hence Rome was built from the start as a State. The women that they needed they captured, as the legend tells us, from the tribe of the Sabines, and they called themselves after their Sabine wives, – Quirites. Even in later years, the Roman citizens were addressed in the Forum as Quirites. "Populus Romanus" stood for the free population of Rome in general; but "Populus Romanus quiritium" expressed the ancestry and quality of the Roman citizen. The Roman gens was of father-right stamp. The children inherited as consanguineous heirs; if there were no children, the relatives of the male line inherited; were none of these in existence, then the property reverted to the gens. By marriage, woman lost her right to inherit her father's property and that of his brothers. She had stepped out of her gens: neither she nor her children could inherit from her father or his brothers: otherwise the inheritance would be lost to the paternal gens. The division in gentes, phratries and tribes constituted in Rome for centuries the foundation of the military organization, and also of the exercise of the rights of citizenship. But with the decay of the paternal gentes and the decline of their significance, conditions shaped themselves more favorably for woman. She could not only inherit, but had the right to administer her own fortune. She was, accordingly, far more favorably situated than her Greek sister. The freer position that, despite all legal impediments, she gradually knew how to conquer, caused the elder Cato, born 234 before our reckoning, to complain: "If, after the example of his ancestors, every head of a family kept his wife in proper subjection, we would not have so much public bother with the whole sex."18
So long as the father lived, he held in Rome the guardianship over his daughter, even if she were married, unless he appointed another guardian himself. When the father died, the nearest male of kin, even though declared unqualified as an agnate, came in as guardian. The guardian had the right at any time to transfer the guardianship to any third person that he pleased. Accordingly, before the law, the Roman woman had no will of her own.
The nuptial forms were various, and in the course of centuries underwent manifold alterations. The most solemn nuptials were celebrated before the High Priest, in the presence of at least ten witnesses. At the occasion, the bridal pair, in token of their union, partook together from a cake made of flour, salt and water. As will be noticed, a ceremony is here celebrated, that bears great resemblance to the breaking of the sacramental wafer at the Christian communion. A second form of nuptials consisted in possession. The marriage was considered accomplished if, with the consent of her father or guardian, a woman lived with the chosen man a whole year under one roof. A third form of nuptials was a sort of mutual purchase, both sides exchanging coins, and the promise to be man and wife. Already at the time of Cicero19 free divorce for both sides was generally established; it was even debated whether the announcement of the divorce was necessary. The "lex Julia de adulteriis," however, prescribed that the divorce was to be solemnly proclaimed. This decree was made for the reason that women, who committed adultery, and were summoned to answer the charge, often claimed to have been divorced. Justinian, the Christian20 forbade free divorce, unless both sides desired to retire to a monastery. His successor, Justinian II, however, found himself obliged to allow it again.
With the growing power and rising wealth of Rome, mad-brained vices and excesses took the place of the former severity of manners. Rome became the center from which debauchery, riotous luxury and sensuous refinements radiated over the whole of the then civilized world. The excesses took – especially during the time of the Emperors, and, to a great extent, through the Emperors themselves – forms that only insanity could suggest. Men and women vied with one another in vice. The number of houses of prostitution became ever larger, and, hand
Joh. David Michaelis, "Mosaisches Recht," Reutlingen, 1793.
Karl Heinzen, "Ueber die Rechte und Stellung der Frauen."
Born 106 before our reckoning.
He lived from 527 to 565 of our reckoning.
