CHAPTER II.

PROGRESS AND REFORMS. THE ROMAN LAW.

Considered as a sovereign, Marcus-Aurelius was the embodiment of the liberal politician. Respect for mankind formed the basis of his conduct. He recognised that in the interest of good itself, we ought not to impose this good on others in an arbitrary manner, the free play of freedom being the first condition of human life. He desired the amelioration of mind and not merely physical obedience to the law; he sought for the public felicity, but such felicity not to be procured through servitude, which is the greatest of errors. His ideal of government was wholly republican. The prince was the first subject under the law. He was only the lessee and tenant of the wealth of the State. He must indulge no useless luxury; be strictly economical; his charity real and inexhaustible; easily accessible and affable of speech; pursuing in everything the public good, and not public applause.

Some historians, more or less imbued with this polity, which was regarded as superior because it assuredly had no connection with any philosophy, have endeavoured to prove that a man so accomplished as Marcus-Aurelius could but be a bad administrator and a mediocre sovereign. It might be, indeed, that Marcus-Aurelius sinned more than once through being too indulgent. However, apart from the evils which it was absolutely impossible to foresee or to prevent, his reign stands out to us as being great and prosperous. The improvement in manners was considerable. Many of the secret aims which instinctively pursued Christianity were legally attained. The general political system had some grave defects; but the wisdom of the good emperor covered all with a temporary palliative. It was a singular thing that this virtuous prince, who never once made the least concession to false popularity, was adored by the people. He was democratic in the best sense of the word. The old Roman aristocracy inspired him with antipathy. He had no regard for birth, nor even for education and manners; he only looked to merit. As he could not find amongst the patricians fit subjects to second his ideas of wise government, he entrusted those functions to men whose only nobility was their honesty.

Public assistance, established by Nerva and Trajan, developed by Antoninus, reached, under Marcus-Aurelius, the highest point it had ever attained. The principle that the State has in some sort paternal duties to perform towards its members (a principle which ought to be remembered with gratitude, even when we have got beyond it)—that principle, I say, was proclaimed in the world for the first time in the second century. The education of children in a liberal manner had become, on account of the insufficiency of morals, and in 14consequence of the defective economical principles upon which society reposed, one of the great pre-occupations of statesmen. Since the time of Trajan it had been endowed by hypothecating sums of money, the revenues from which were managed by the procurators. Marcus Aurelius made the procurators functionaries of the first rank; he selected them with the greatest care from amongst the consuls and prætors, and increased their powers. His great private fortune rendered it easy for him to place these largesses on a secure basis. He himself created a great number of endowments for the succour of the youth of both sexes. The institute of the Young female Faustinas dated from Antoninus. After the death of the second Faustina, Marcus-Aurelius founded New female Faustinas. An elegant bas-relief represents these young women pressing around the empress, who drops wheat into a fold of their robes.

Stoicism, since the reign of Hadrian, had permeated the Roman law with its broad maxims and had made of it a natural law, a philosophical law, so that reason might conceive it as applicable to all men. The perpetual edict of Salvius Julianus was the first complete expression of that new law destined to become the universal law. It was the triumph of the Greek mind over the Latin mind. The strict law yielded to equity; mildness turned the scale on severity; justice seemed inseparable from beneficence. The great jurisconsulates of Antoninus, Salvius Valens, Ulpius Marcellus, Javolenus, Volusius Mœcianus continued the same work. The last was the master of Marcus-Aurelius in the matter of jurisprudence, and, to speak the truth, the work of the two holy emperors ought not to have been separated. From them dates the majority of the sensible and humane laws which modify the rigour of the ancient law and form, from 15legislation primarily narrow and implacable, a code susceptible of being adopted by all civilised peoples.

The weak individual, in ancient societies, was somewhat dependent. Marcus-Aurelius constituted himself in a fashion the tutor of all those who had not one. The wants of the poor child and the sick child were assured. The tutelary Prætor was created to give guarantees for the orphaned. The civil law and the registration of births were commenced. A multitude of ordinances, completely just, introduced into the whole administration a remarkable spirit of mildness and of humanity. The expenses of the cures were diminished. Thanks to a better system of provisioning, famines in Italy were rendered impossible. In the order of judicature many reforms of an excellent character dated in like manner from the reign of Marcus. The regulation of manners, notably that which had reference to indiscriminate baths, was made more strict. It was to the slaves especially that Antoninus and Marcus-Aurelius showed themselves beneficent. Some of the greatest monstrosities of slavery were corrected. It was henceforward admitted that the master could commit an injustice to a slave. From the time of the new legislation corporal punishments were regulated. To kill a slave became a crime; to treat him with excessive cruelty was a misdemeanour, and drew upon the master the necessity of selling the unfortunate whom he had tortured. The slave, in time, resorted to the tribunals, became a somebody, and a member of the city. He was proprietor of his own substance, had his family, and it was not allowable to sell separately husband, wife, and children. The application of the question to servile persons was limited. The master might not, except in certain cases, sell his slaves to make them fight with wild beasts 16in the amphitheatres. The servant, sold under the condition ne prostituatur, was preserved from the bordelles. There was what was called favor libertatis; in case of doubt, interpretation the most favourable to liberty was admitted. People placed humanity against the rigour of the law, often even against the letter of the statute. In point of fact, from the time of Antoninus, the jurisconsulate, imbued with Stoicism, considered slavery as a violation of the rights of nature, and were inclined to restrict it. Enfranchisement was favoured in every way. Marcus-Aurelius went further and recognised within certain limits the right of slaves to the goods of the master. If a person did not present himself to claim the heritage of a testator, slaves were authorised to divide the goods amongst themselves; when one only or several were admitted to the adjudication the result was the same. The enfranchised person was in like manner protected by the most stringent enactments against slavery, which had a thousand different devices for seizing on him again.

The son, the wife, the minor were the objects of legislation at once intelligent and humane. The son was obliged to maintain his father, but ceased to be under his control. The most odious excesses, which the ancient Roman law regarded as quite natural to permit to paternal authority, were abolished or restrained. The father had duties towards his children, and could get nothing back for having fulfilled them; the son, on his side, owed to his kindred alimentary succour, in proportion to his fortune.

The laws, up to this time, of tutelage and trusteeship had been most incomplete; Marcus-Aurelius made them models of administrative foresight. By the ancient law the mother made hardly any part of the family of her husband and of her children. The Tertullian Senatus consultum (in the year 158), and 17the Orphitian Senatus consultum (178) established to the mother the right of succession, from the mother to the child and from the child to the mother. Sentiment and natural law took precedence. The excellent laws in regard to banks, to the sale of slaves, to informers and slanderers, put an end to a multitude of abuses. The fiscal laws had always been severe, exacting. It was henceforward settled in principle that in doubtful cases it should be the treasury that was wrong. Imposts of a vexatious character were abolished. The length of processes was diminished. The criminal law became less cruel, and the inculpated person was given valuable guarantees; still, it was the personal characteristic of Marcus-Aurelius to diminish, in application, the established penalties. In cases of folly punishment was remitted. The great stoical principle, that culpability resided in the motive, not in the deed, became the soul of laws.

Thus was definitely established that great marvel the Roman law, a sort of revelation in its way which ignorance has placed to the honour of the compilers of Justinian, but which in reality was the work of the great emperors of the second century, and admirably interpreted and continued by the eminent jurisconsulates of the third century. The Roman law had a less clamorous triumph than Christianity, but in a sense a more durable one. Wiped out first by barbarism, it was resuscitated about the close of the Middle Ages, was the law of the world of the Renaissance, and became once more in a modified form the law of modern peoples. It was hence that the great Stoical school in the second century attempted to reform the world, after having to appearance miserably failed, and achieved in reality a complete victory. Compiled by the classical jurisconsults of the times of Severus, mutilated and altered by 18Tribonian, the texts survived, and these texts became later the code of the entire world. Now these texts were the work of the eminent legalists who, grouped about Hadrian, Antoninus, and Marcus-Aurelius, caused the law to enter definitely into its philosophic age. The labour was continued under the Syrian emperors; the frightful political decadence of the third century did not prevent that vast edifice from continuing its slow and splendid growth.

It was not that Marcus-Aurelius made a parade of the innovating spirit. On the contrary, he conducted himself in such a manner as to give to the reforms a conservative appearance. He treated man always as a moral being; he never affected, as did often the pretended transcendental politicians, to treat him as a machine or a means to an end. If he could not change the atrocious penal code of the times he mitigated it in its application. A fund was established for the obsequies of the poor citizens; funeral colleges were authorised to receive legacies and to become civil societies, having the right to possess property, slaves, franchises. Seneca had said: “All men, if we go back to the origin of things, have gods for fathers.” On the morrow Ulpian will say: “By the law of nature all men are born free and equal.”

Marcus-Aurelius wished to suppress the hideous scenes which made the amphitheatres actual places of horror for whoever possessed a moral sense. But he did not succeed; these abominable representations were a part of the life of the people. When Marcus-Aurelius armed the gladiators for the great Germanic war, there was almost a revolution. “He wishes to take away from us our amusements,” cried the multitude, “and to constrain us to philosophy.” The habitués of the amphitheatres were the only persons who did not love him. Compelled 19to yield to an opinion which was stronger than he, Marcus-Aurelius protested nevertheless in every possible way. He brought some alleviation to evils he was not able to suppress; we hear of rope-dancers having mattresses placed under them, and of people not being allowed to fight unless their arms were covered. The emperor visited the spectacles as seldom as he could help, and only out of complaisance. He affected during the representation to read, to give audiences, to sign despatches, without making himself the object of the raillery of the public. One day a lion that a slave had pricked for the purpose of devouring some men made so much of his master that on every side the public clamoured for his manumission. The emperor, who during this time had turned his head, responded with temper: “This man has done nothing worthy of liberty.” He issued several edicts to prevent precipitate manumissions, called for under the excitement of popular plaudits, which seemed to him a first reward for cruelty.