The history of Rome. Book V

he did was to lay the foundation for the building of centuries. But of the lines, which the great man drew in these departments, several can still be recognized; and it is more pleasing to follow him here, than in the task of building from the ruins of the nationalities.

Census of the Empire

As to constitution and administration, we have already noticed elsewhere the most important elements of the new unity - the transition of the sovereignty from the municipal council of Rome to the sole master of the Mediterranean monarchy; the conversion of that municipal council into a supreme imperial council representing Italy and the provinces; above all, the transference - now commenced - of the Roman, and generally of the Italian, municipal organization to the provincial communities. This latter course - the bestowal of Latin, and thereafter of Roman, rights on the communities ripe for full admission to the united state - gradually of itself brought about uniform communal arrangements. In one respect alone this process could not be waited for. The new empire needed immediately an institution which should place before the government at a glance the principal bases of administration - the proportions of population and property in the different communities - in other words an improved census. First the census of Italy was reformed. According to Caesar's ordinance[101] - which probably, indeed, only carried out the arrangements which were, at least as to principle, adopted in consequence of the Social war - in future, when a census took place in the Roman community, there were to be simultaneously registered by the highest authority in each Italian community the name of every municipal burgess and that of his father or manumitter, his district, his age, and his property; and these lists were to be furnished to the Roman censor early enough to enable him to complete in proper time the general list of Roman burgesses and of Roman property.

That it was Caesar's intention to introduce similar institutions also in the provinces is attested partly by the measurement and survey of the whole empire ordered by him, partly by the nature of the arrangement itself; for it in fact furnished the general instrument appropriate for procuring, as well in the Italian as in the non-Italian communities of the state, the information requisite for the central administration. Evidently here too it was Caesar's intention to revert to the traditions of the earlier republican times, and to reintroduce the census of the empire, which the earlier republic had effected - essentially in the same way as Caesar effected the Italian - by analogous extension of the institution of the urban censorship with its set terms and other essential rules to all the subject communities of Italy and Sicily[102]. This had been one of the first institutions which the torpid aristocracy allowed to drop, and in this way deprived the supreme administrative authority of any view of the resources in men and taxation at its disposal and consequently of all possibility of an effective control[103]. The indications still extant, and the very connection of things, show irrefragably that Caesar made preparations to renew the general census that had been obsolete for centuries.

Religion of the Empire

We need scarcely say that in religion and in jurisprudence no thorough levelling could be thought of; yet with all toleration towards local faiths and municipal statutes the new state needed a common worship corresponding to the Italo-Hellenic nationality and a general code of law superior to the municipal statutes. It needed them; for de facto both were already in existence. In the field of religion men had for centuries been busied in fusing together the Italian and Hellenic worships partly by external adoption, partly by internal adjustment of their respective conceptions of the gods; and owing to the pliant formless character of the Italian gods, there had been no great difficulty in resolving Jupiter into Zeus, Venus into Aphrodite, and so every essential idea of the Latin faith into its Hellenic counterpart. The Italo-Hellenic religion stood forth in its outlines ready-made; how much in this very department men were conscious of having gone beyond the specifically Roman point of view and advanced towards an Italo-Hellenic quasi-nationality, is shown by the distinction made in the already-mentioned theology of Varro between the 'common' gods, that is, those acknowledged by Romans and Greeks, and the special gods of the Roman community.

Law of the Empire

So far as concerns the field of criminal and police law, where the government more directly interferes and the necessities of the case are substantially met by a judicious legislation, there was no difficulty in attaining, in the way of legislative action, that degree of material uniformity which certainly was in this department needful for the unity of the empire. In the civil law again, where the initiative belongs to commercial intercourse and merely the formal shape to the legislator, the code for the united empire, which the legislator certainly could not have created, had been already long since developed in a natural way by commercial intercourse itself. The Roman urban law was still indeed legally based on the embodiment of the Latin national law contained in the Twelve Tables.

Later laws had doubtless introduced various improvements of detail suited to the times, among which the most important was probably the abolition of the old inconvenient mode of commencing a process through standing forms of declaration by the parties[104] and the substitution of an instruction drawn up in writing by the presiding magistrate for the single juryman (formula): but in the main the popular legislation had only piled upon that venerable foundation an endless chaos of special laws long since in great part antiquated and forgotten, which can only be compared to the English statute-law. The attempts to impart to them scientific shape and system had certainly rendered the tortuous paths of the old civil law accessible, and thrown light upon them[105]; but no Roman Blackstone could remedy the fundamental defect, that an urban code composed four hundred years ago with its equally diffuse and confused supplements was now to serve as the law of a great state.

The New Urban Law or the Edict

Commercial intercourse provided for itself a more thorough remedy. The lively intercourse between Romans and non-Romans had long ago developed in Rome an international private law (ius gentium[106]), that is to say, a body of maxims especially relating to commercial matters, according to which Roman judges pronounced judgment, when a cause could not be decided either according to their own or any other national code and they were compelled - setting aside the peculiarities of Roman, Hellenic, Phoenician and other law - to revert to the common views of right underlying all dealings. The formation of the newer law attached itself to this basis.

In the first place as a standard for the legal dealings of Roman burgesses with each other, it de facto substituted for the old urban law, which had become practically useless, a new code based in substance on a compromise between the national law of the Twelve Tables and the international law or so-called law of nations. The former was essentially adhered to, though of course with modifications suited to the times, in the law of marriage, family, and inheritance; whereas in all regulations which concerned dealings with property, and consequently in reference to ownership and contracts, the international law was the standard; in these matters indeed various important arrangements were borrowed even from local provincial law, such as the legislation as to usury[107], and the institution of hypotheca. Through whom, when, and how this comprehensive innovation came into existence, whether at once or gradually, whether through one or several authors, are questions to which we cannot furnish a satisfactory answer.

We know only that this reform, as was natural, proceeded in the first instance from the urban court; that it first took formal shape in the instructions annually issued by the praetor urbanus, when entering on office, for the guidance of the parties in reference to the most important maxims of law to be observed in the judicial year then beginning (edictum annuum or perpetuum praetoris urbani de iuris dictione); and that, although various preparatory steps towards it may have been taken in earlier times, it certainly only attained its completion in this epoch. The new code was theoretic and abstract, inasmuch as the Roman view of law had therein divested itself of such of its national peculiarities as it had become aware of; but it was at the same time practical and positive, inasmuch as it by no means faded away