Roman Law By Houston Stewart Chamberlain

(From Houston Stewart Chamberlain’s The Foundations of the

Nineteenth Century Volume I, originally published in 1899, translated from
the German by John Lees in 1910 and revised in 1912)

[Note: The original Greek words for “Spartans” and “Achaeans” are missing from
this otherwise complete transcription of Chapter 2 of Foundations Vol. I.]

This edition 2019, Amory Stern

San Diego, CA

Scribd version
This text is also available in paperback and Kindle versions.
2
Houston Stewart Chamberlain

DISPOSITION

TO define in clear terms what we have inherited from

Rome, what out of that vast manufactory of human
destinies still exercises a living influence, is certainly
impossible, unless we have a clear conception of
what Rome was. Even Roman law in the narrower
sense of the word (Private Law), which, as every one
knows, forms the chief material on which all
juristical minds are to this day trained, and provides
the actual basis even for the freest, most divergent
and more modern systems of law, cannot be judged
in a way that will give a proper estimate of its
peculiar value, if it be simply regarded as a kind of
lay Bible, a canon, which has taken a permanent
place, hallowed by tens of centuries. If this blind
attachment to Roman legal dicta is the result of a
superficial historical appreciation, the same may be
said of the violent reaction against Roman Law.
Whoever studies this law and its slow tedious
development, even if only in general outlines, will
certainly form a different judgment. For he will see
how the Indo-European races1, even in earliest times
1
In another place I shall have to refer to the difficult question of races
(see chap. iv.). Here I shall only insert a very important remark: while
from various sides the existence of an Aryan race is called in question,
while many philologists doubt the validity of the language criterion (see
Salomon Reinach, L’origine des Aryens) and individual anthropologists
point to the chaotic results of measuring skulls (e.g. Topinard and
3
Roman Law

possessed certain clearly expressed fundamental legal

convictions, which developed in different ways in the
different races without ever being able to attain any
full development; he will see that they could not do
so because no branch could succeed in founding a
free and at the same time lasting State; then he will
be surprised to perceive how this small nation of men
of strong character, the Romans, established both
State and Law — the State by every one desiring
permanently to establish his own personal right, the
Law by every one possessing the self-control to make
the necessary sacrifices and to be absolutely loyal to
the common weal; and whoever gains this insight
will certainly never speak except with the greatest
reverence of Roman Law as one of the most valuable
possessions of mankind. At the same time he will
certainly perceive that the highest quality of Roman
Law and the one most worthy of imitation is its exact
suitability to define conditions of life. He cannot,
Ratzel), the investigators in the sphere of history of law unanimously
use the expression Aryans or Indo-Europeans, because they find a
definite conception of law in this group of linguistically related peoples,
who from the beginning and through all the branchings of a manifold
development have fundamentally nothing in common with certain
equally ineradicable legal conceptions prevalent among the Semites,
Hamites, &c. (See the works of Savigny, Mommsen, Jhering and Leist.)
No measuring of skulls and philological subtleties can get rid of this
great simple fact — a result of painfully accurate, juristical research — and
by it the existence of a moral Aryanism (in contrast to a moral non-
Aryanism) is proved, no matter how varied are the elements of which the
peoples of this group should be composed.
4
Houston Stewart Chamberlain

however, fail to note that State and Law — both

creations of this “born nation of lawyers”2 — are here
inseparable, and that we cannot understand either this
State or this Law, if we have not a clear conception
of the Roman people and its history. This is all the
more indispensable, as we have inherited from the
Roman idea of the State as well as from Roman
Private Law a great deal that still lives to-day — not
to speak of the political relations actually created by
the Roman idea of State, relations to which we owe
the very possibility of our existence to-day as
civilised nations. Hence it may be opportune to ask
ourselves, What kind of people were the Romans?
What is their significance in history? Naturally only
a very hasty sketch can be given here: but it may, I
hope, suffice to give us a clear idea of the political
achievements of this great people in their essential
2
Jhering: Entwickelungsgeschichte des römischen Rechts, p. 81. An
expression which is all the more remarkable as this great authority on
law is wont to deny vigorously that anything is innate in a people; he
even goes the length in his Vorgeschichte der Indoeuropäer (p.270) of
making the extraordinary statement that the inherited physical (and
with it simultaneously the moral) structure of man — for this is surely
what the term “race” is intended to designate — has absolutely no influence
on his character, but solely the geographical sorroundings, so that the Aryan,
if transferred to Mesopotamia, would eo ipso become a Semite and vice
versa. In comparison with this, Haeckel’s pseudo-scientific phantasma of
different apes, from each of which a different race of men derives its origin,
seems a sensible theory. Of course one must not forget that Jhering had to
contend all his life against the mystic dogma of an “innate corpus juris,” and
that it is his great achievement to have paved a way for true science in this
matter; that explains his exaggerations in the opposite direction.
5
Roman Law

outlines and to characterise with clearness the

somewhat complicated nature of the legacy of
politics and political law that has been handed down
to our century. Then and then only will it be feasible
and profitable to consider our legacy of private law.

ROMAN HISTORY

One would think that, as the Latin language and

the history of Rome play such an important role in
our schools, every educated person would at least
possess a clear conception of the growth and
achievements of the Roman people. But this is not
the case, and indeed it is not possible with the usual
methods of instruction.
Of course every person of culture is, to a certain
point, at home in Roman history: the legendary
Romulus, Numa Pompilius, Brutus, the Horatii and
Curiatii, the Gracchi, Marius, Sulla, Caesar, Pompey,
Trajan, Diocletian and countless others, are all at
least as familiar to us (i.e. in regard to names and
dates) as our own great men; a youth who could not
give information about the Second Punic War or
confused the different Scipios would feel just as
ashamed as if he could not explain the advantages of
the Roman legions and maniples over the
Macedonian phalanx. One must also admit that
Roman history, as it is usually presented to us, is a
6
Houston Stewart Chamberlain

remarkably rich store of interesting anecdotes; but the

knowledge one derives from it is one-sided and
absolutely defective. The whole history of Rome
almost assumes the appearance of a great and cruel
sport, played by politicians and generals, whose
pastime it is to conquer the world, whereby they
achieve many marvellous results in the art of
systematic oppression of foreign peoples and egging
on of their own, as well as in the equally noble art of
inventing new stratagems of war and putting them
into practice with as large herds of human cattle as
possible.
There is beyond doubt some truth in this view.
There came a time in Rome when those who
considered themselves aristocrats chose war and
politics as their life-work, instead of taking them up
only in time of necessity. Just as with us a short time
ago, a man of family could only become an officer,
diplomatist or administrative official, so that the
“upper ten thousand” in later Rome could enter only
three professions that did not degrade them socially
— res militaris, juris scientia, and eloquentia.3 And
as the world was still young and the province of
science not too large to be covered, a man of ability
could master all three; if in addition he had plenty of
money, his qualifications for politics were complete.
It is only necessary to read over again the letters of
3
Cf. Savigny: Geschichte des römischen Rechtes im Mittelalter, chap. i.
7
Roman Law

Cicero to see from his simple confessions, hopelessly

entrammelled as he was in the ideas of his time, how
mighty Rome and its destinies became the play-ball
of idle dawdlers and how much truth there is in the
assertion that Rome was not made but unmade by its
politicians. Politics have their peculiarities in other
countries as well as Rome. From Alexander to
Napoleon, one can hardly over-estimate the power of
criminal obstinacy in purely political heroes. A brief
discussion of this point is all the more appropriate in
this chapter, as Rome in particular is rightly regarded
as a specifically political State and we may therefore
hope to learn from it how and by whom great and
successful politics are achieved.
What Gibbon says about kings in general, that
“their power is most effective in destruction,” is true
of almost all politicians — as soon as they possess
sufficient power. I am not sure that it was not the
wise Solon who made a prosperous development of
the Athenian State impossible for all time, by doing
away with the historically given composition of the
population from various tribes and introducing an
artificial class-division according to property. This
so-called timocracy (honour to him who has money)
comes in, it is true, of its own accord almost
everywhere to a smaller or greater extent, and Solon
at least took the precaution of making duties increase
with the increase of wealth; nevertheless he it was
8
Houston Stewart Chamberlain

with his constitution that laid the axe to the root, from
which — however painfully, the Athenian State had
grown.4 A less important man would not have
ventured to make such a revolutionary change in the
natural course of development, and that would
probably have been a blessing. And can we form a
different opinion of Julius Caesar? Of the famous
generals in the history he probably played the
4
Many will think, but unjustly so, that the constitution of Lycurgus is
still more arbitrary. For Lycurgus does not undermine the foundations
provided by historical development; on the contrary, he strengthens
them. The peoples that had migrated, one after another, into
Lacedaemania, formed layers above each other, the latest comers at the
top — and Lycurgus allowed this to remain so. Though the Pelasgians
(Helots) tilled the land, the Achaeans engaged in trade and industry, and the
Dorians (Spartiatae) waged war and in consequence ruled, that was no
artificial division of labor but the confirmation of a relationship actually
existing. I am also convinced that life was in Lacedaemonia for a long time
happier than in any other part of Greece; slave-trade was forbidden, the
Helots were hereditary tenants, and though not bedded on roses they enjoyed
considerable independence; the Achaeans had freedom to move about, even
their limited military service being frequently relaxed in the interest of their
industries, which were hereditary in the various families; for the Spartiatae,
finally, social intercourse was the principle of their whole life, and in the
rooms where they met at their simple meals, there stood resplendent one
single statue as protecting deity, that of the god of laughter. (Plutarch,
Lycurgus, xxxvii.) Lycurgus, however, lays himself open to the reproach
that he tried to fix these existing and so far sound conditions, and thus
robbed the living organism of its necessary elasticity; secondly, that on the
substantial and strong foundation he erected a very fantastic structure. Here
again we see the theorising politician, the man who tries to decide by way of
reasoning how things must be, while as a matter of fact the function of
logical reason is to record and not to create. But to the fact that Lycurgus, in
spite of everything, took historical data as his starting-point, are due that
strength and endurance which his constitution enjoyed above the rest of
Greece.
9
Roman Law

greatest part; in the most widely different spheres

(think only of the improvement of the calendar, the
undertaking of a universal legal code, the founding of
the African colony) he revealed a penetrating
understanding; as an organising genius he would, I
think, not be surpassed by Napoleon, under equally
favorable conditions — and withal he had the
inestimable advantage of not being a foreign
condottiere, like Napoleon or Diocletian, but a good
genuine Roman, firmly rooted in his hereditary
fatherland, so that his individual arbitrariness (as in
the case of Lycurgus) would certainly not erred far
from the plumb-line of what suited his nation. And
yet it is this very man and no other who bent the
rough tree of the Roman constitution and gave it over
to inevitable decay and ruin. For the remarkable
thing in pre-Caesarean Rome is not that the city had
to experience so many violent internal storms — in
the case of a structure so incomparably elastic that is
natural, the clash of interests and the never-resting
ambition of professional politicians saw to that in
Rome as elsewhere — no, what fills us with wonder
and admiration is rather the vitality of this
constitution. Patricians and Plebeians might
periodically be at each other’s throats: yet an
invisible power held them firmly together; as soon as
new conditions were provided for by a new
compromise, the Roman State stood once more
10
Houston Stewart Chamberlain

stronger than ever.5 Caesar was born in the midst of

one of these severe crises; but perhaps it appears to
us in history worse than all previous ones — both
because it is nearer to us in time, and we are therefore
more fully informed of it, and because we know the
issue which Caesar brought about. I for my part
consider the interpretation which the philosophy of
history gives to these events a pure abstraction.
5
The expression “Aristocrats and Plebs,” which Ranke likes to use for
Patricians and Plebeians, is to the layman most misleading. Niebuhr
already objected to the confusion of Plebs and Pöbel (rabble). Patricians
and Plebeians are rather like two powers in the one State, the one
certainly privileged politically, the other the reverse in many ways (at
least in former times), both, however, composed of free, independent,
altogether anonymous yeomen. And for that reason Sallust can write,
even of the oldest times: “The highest authority certainly lay with the
Patricians, but the power most assuredly with the Plebeians” (Letter to
Caesar, i. 5); we also see the Plebeians from earlier times play a great
part in the State, and their families intermarry to a large extent with the
Patricians. The uneducated man among us is therefore quite misled if
he receives the idea that in Rome it was a question of an aristocracy and
a proletariat. The peculiarity and the remarkable vitality of the Roman
State had its foundation in this, that it contained from the first two
differentiable parts (which present in their political efficacy in many
points an analogy to Whigs and Tories, only that here it is a question of
“born parties”), which, however, had grown up together with the State
through exactly the same interests of property, law and freedom; from
this the Romans derived, internally, continuous freshness of life, and in
foreign affairs, perpetual unswerving unanimity. Of the Plebeian
portions of the army Cato says, “viri fortissimi et milites strenuissimi”;
they were indeed free-men, who fought for their homes and hearths. In
ancient Rome, as a matter of fact, only freeholders could serve in the
army, and Plebeians held the rank of officer equally with the Patricians
(see Mommsen: Abriss des römischen Staatrechtes, 1893, p.258; and
Esmarch: Römische Rechtsgeschichte, 3rd ed., p. 28 ff.).
11
Roman Law

Neither the rough hand of the impetuous, passionate

Plebeian Marius nor the tiger-like cruelty of the
coolly calculating Patrician Sulla would have
inflicted fatal wounds upon the Roman constitution.
Even the most critical danger — the freeing of many
thousands of slaves and the bestowing of citizenship
on many thousands of those freed-men (and that for
political, immoral reasons) — Rome would have
soon surmounted. Rome possessed the vitality to
ennoble slavery, that is, to give it the definite Roman
character. Only a mighty personality, one of those
abnormal heroes of will, such as the world scarcely
produces once in a thousand years, could ruin such a
State. It is said that Caesar was a saviour of Rome,
snatched away too soon, before he could finish his
work: this is false. When the great man arrived with
his army on the banks of the Rubicon, he is said to
have hesitatingly commanded a halt and reflected
once more on the far-reaching consequences of his
action; if he did not cross, he himself would be in
danger, if he did cross the boundary marked by
sacred law, he would involve the whole world (i.e.
the Roman State) in danger: he decided for ambition
and against Rome. The anecdote may be invented,
Caesar at least lets us see no such struggle of
conscience in his Civil War; but the situation is
exactly described thereby. No matter how great a
man may be, he is never free, his past imperatively
12
Houston Stewart Chamberlain

prescribes the direction of his present; if once he has

chosen the worse part, he must henceforth do harm,
whether he wills it or not, and though he raise himself
to an autocracy, in the fond hope that he henceforth
has it in his power to devote himself wholly to doing
what is good, he will experience in himself that “the
might of kings is most effective in destruction.”
Caesar had written to Pompey even from Ariminum
to the effect that the interests of the republic were
nearer to his heart than his own life;6 and yet Caesar
had not long been all-powerful to do good, when his
faithful friend Sallust had to ask him whether he had
really saved or despoiled the republic?7 At best he
had saved it as Virginius did his daughter. Pompey,
as several contemporary writers tell us, would allow
no one beside him, Caesar no one over him. Imagine
what might have been the result for Rome if two such
men, instead of being politicians, had acted as
servants of the Fatherland, as had been Roman
custom hitherto!
It is not my business to enter more fully into the
subject briefly sketched here; my only object has
been to show what a superficial knowledge we have
of a people, if we study only the history of its
politicians and generals. This is particularly the case
6
Civil War, i. 9. Thoroughly Roman, by the way, to use such a
commonplace expression for such a time!
7
Second Letter to Caesar
13
Roman Law

with Rome. Whoever studies Rome merely from this

point of view, no matter how industriously he studies
its history, can certainly arrive at no other result than
did Herder, whose interpretation therefore will
remain classic. To this man of genius Roman history
is “the history of demons,” Rome a “robbers’ cave,”
what the Romans give to the world “devastating
night,” their “great noble souls, Caesars and Scipios,”
spend their life in murdering, the more men they have
slaughtered in their campaigns, the warmer the praise
that is paid them.8 This from a certain viewpoint is
correct; but the investigation of Niebuhr, Duruy, and
Mommsen (especially the last), as well as those of
the brilliant historians of law in our century —
Savigny, Jhering and many others — have brought to
light another Rome, to the existence of which
Montesquieu had been the first to call attention. Here
the important thing was to discover and put in its
right light what the old Roman historians, intent on
celebrating battles, describing conspiracies,
slandering enemies and flattering politicians who
paid well, had passed by unnoticed or at any rate had
never duly appreciated. A people does not become
what the Romans have become in the history of
mankind by means of murder and robbery, but in
spite of it; no people produces statesmen and warriors
of such admirably strong character as Rome did, if it
8
Ideen zur Geschichte der Menschheit, Bk XIV.
14
Houston Stewart Chamberlain

does not apply a broad, firm and sound basis for

strength of character. What Herder and so many after
him call Rome can therefore be only a part of Rome,
and indeed not the most important part. The
exposition of Augustine in the fifth book of his De
civitate Dei is, in my judgment, far happier; he calls
attention particularly to the absence of greed and
selfishness among the Romans and says that their
whole will proclaimed itself in one resolution, “either
to live free or die bravely” (aut fortiter emori aut
liberos vivere); and the greatness of the Roman
power, as well as its durability, he ascribes to this
moral greatness.
In the general introduction to the book I spoke of
“anonymous” powers, which shape the life of
peoples; we have a brilliant example of this in Rome.
I believe we might say without exaggeration that all
Rome’s true greatness was such an anonymous
“national greatness.” If in the case of the Athenian
genius unfolded itself at the blossom, here it did so in
the trunk and roots; Rome was of all nations that with
the strongest roots. Hence it was that it defied so
many storms, and the history of the world required
almost five hundred years to uproot the rotten trunk.
Hence too, the peculiar grisaille of its history. In
the case of the Roman tree everything went to wood,
as the gardeners say; it bore few leaves, and fewer
blossoms, but the trunk was incomparably strong; by
15
Roman Law

its support later nations raised themselves aloft. The

poet and philosopher could not prosper in this
atmosphere, this people loved only those
personalities in whom it recognised itself, everything
unusual aroused its distrust; “whoever wished to be
other than his comrades passed in Rome for a bad
citizen.”9 The people were right; the best statesman
for Rome was he who did not move one’s hair-
breadth from what the people as a whole wished, a
man who understood how to open the safety-valve
now here, now there, to meet the growing forces by
the lengthening of pistons and by suitably arranged
centrifugal balls and throttles, till the machine of
State had quasi-automatically increased its size and
perfected its administrative power; he must be, in
short, a reliable mechanician: that was the ideal
politician for this strong, conscious people whose
interests lay entirely in the practical things of life. As
soon as one overstepped this limit, he necessarily
committed a crime against the common weal.
Rome, I repeat — for this is the chief point to
grasp, and everything else follows from it — Rome is
not the creation of individual men, but of a whole
people; in contrast to Hellas everything really great
here is “anonymous”; none of its great men
approaches the greatness of the Roman people as a
whole. And so what Cicero says in his Republic (ii.
9
Mommsen: Römische Geschichte, 8th ed., i. 24
16
Houston Stewart Chamberlain

I) is very correct and worth taking to heart: “The

constitution of our State is superior to that of others
for the following reason: in other places it was
individual men who by laws and institutions founded
the constitution, as, for example, Minos in Crete,
Lycurgus in Lacedaemonia, in Athens (where change
was frequent at one time Theseus, at another Draco,
then Solon, Clisthenes and many others; on the other
hand, our Roman Commonwealth is not founded on
the genius of a single man but of many men, nor did
the span of a fleeting human life suffice to establish
it, it is the work of centuries and successive
generations.” Even the General in Rome needed only
to give free play to the virtues which his whole army
possessed — patience, endurance, unselfishness,
contempt of death, practical common sense, above all
the high consciousness of civic responsibility — and
he was sure of victory, if not to-day, then to-morrow.
Just as troops consisted of citizens, their commanders
were magistrates who only temporarily changed the
office of an administrator or councillor and judge for
that of commander-in-chief; in general too it made
little difference when in the regular routine of office
the one official relieved the other in command; the
idea “soldier” came into prominence only in the time
of decline. It was not as adventurers but as the most
domiciled of citizens and peasants that Romans
conquered the world.
17
Roman Law

ROMAN IDEALS

The question here forces itself upon us: is it at all

admissible to apply the term conquerors to the
Romans? I scarcely think so. The Teutonic peoples,
the Arabians and the Turks were conquerors; the
Romans, on the other hand, from the day they enter
history as an individual, separate nation are
distinguished by their fanatical, warm-hearted, and,
perhaps, narrow-minded love for their Fatherland;
they are bound to this spot of the earth — not
particularly healthy nor uncommonly rich — by the
inseverable ties of heart, and what drives them to
battle and gives them their invincible power is first
and foremost the love of home, the desperate resolve
to yield up the independent possession of this soil
only with their lives. That this principle entailed
gradual extension of the State does not prove lust for
conquest, it was the natural outcome of a compulsion.
Even to-day might is the most important factor in
international law, and we have seen how in our
century the most peaceful of nations, like Germany,
have had unceasingly to increase their military
power, but only in the interests of their independence.
How much more difficult was the position of Rome,
surrounded by a confused chaos of peoples great and
small — close at hand masses of related races
18
Houston Stewart Chamberlain

constantly warring against each other, farther afield

an ever-threatening unexplored chaos of barbarians,
Asiatics, and Africans! Defense did not suffice; if
Rome wished to enjoy peace, she had to spread the
work of organisation and administration from one
land to the other. Observe the contemporaries of
Rome and see what a failure those small Hellenic
states were owing to the lack of political foresight;
Rome, however, had this quality as no people before
or after. Its leaders did not act according to
theoretical conceptions, as we might be inclined to
believe to-day when we see so strictly logical a
development; they rather followed an almost unerring
instinct; this, however, is the surest of all compasses
— happy he who possesses it! We hear much of
Roman hardness, Roman selfishness, Roman greed;
yes! but was it possible to struggle for independence
and freedom amid such a world without being hard?
Can we maintain our place in the struggle for
existence without first and foremost thinking of self?
Is possession not power? But one fact has been
disregarded, viz., that the unexampled successes of
the Romans are based on intellectual and moral
superiority. In truth a one-sided superiority; but what
is not one-sided in this world? And it cannot be
denied that in certain respects the Romans felt more
intensely and thought more acutely than any other
men at any time, and they were in addition peculiar in
19
Roman Law

this, that in their case feeling and thinking worked

together and supplemented each other.
I have already mentioned their love of home.
That was a fundamental trait of the old Roman
character. It was not the purely intellectual love of
the Hellenes, bubbling over and rejoicing in song, yet
ever prone to yield to the treacherous suggestions of
selfishness; nor was it the verbose love of the Jews:
we know how very pathetically the Jews sing of the
“Babylonian captivity,” but, when sent home full-
handed by the magnanimous Cyrus, prefer to submit
to fines and force only the poorest to return, rather
than leave the foreign land where they are so
prosperous; no, in the case of the Romans it was a
true, thoroughly unsentimental love that knew few
words, but was ready for any sacrifice; no man and
no woman among them ever hesitated to sacrifice
their lives for the Fatherland. How can we explain so
unmeasured an affection? Rome was (in olden times)
not a wealthy city; without crossing the boundaries of
Italy one could see much more fruitful regions. But
what Rome gave and securely established was a life
morally worthy of man. The Romans did not invent
marriage, they did not invent law, they did not invent
the Constitutional freedom-giving State; all that
grows out of human nature and is found everywhere
in some form and to some degree; but what the Aryan
races had conceived under these notions as the bases
20
Houston Stewart Chamberlain

of all morality and culture had nowhere been firmly

established till the Romans established it.10 Had the
Hellenes got too near Asia? Were they too suddenly
civilised? Had the Celts, who were by nature
endowed with almost as much fire, become so savage
in the wild North that they were no longer able to
10
For the Aryan peoples in particular, see Leist’s excellent Gräco-
italienische Rechtsgeschite (1884) and his Altarisches Jus civile (1896),
also Jhering’s Vorgeschichte der Indoeuropäer. The ethical investigations
of the last years have, however, shown more and more that marriage,
law and State exist in some form everywhere, even among the savages
of least mental development. And this must be strongly emphasised, for
the evolution mania and the pseudo-scientific dogma of our century
have brought into most of our popular books absolutely invented
descriptions, which are very difficult to remove from them, in spite of
the sure results of exact research; and from here these descriptions also
force their way into valuable and serious books. In Lamprecht’s famous
Deutsche Geschichte, vol. i., for instance, we find what is supposed to be a
description of the social conditions of the old Teutonic peoples,
sketched “under the auspices of comparative ethnology”; here we are
told of a time when among these peoples a “community of sex limited by
no differences of any kind prevailed, all brothers and sisters were
husbands and wives to each other and all their children brothers and
sisters, &c.”: the first progress of this state, as we are to suppose, was
the establishment of the mother’s right, the so-called Matriarchate – and
so the tale continues for pages; one fancies one is listening to the first
stuttering of a new mythology. As far as the mother-right is concerned
(i.e. family name and right of inheritance after the mother, as the
fatherhood was always a common one), Jhering has convincingly shown
that even the oldest Aryans, before breaking off of a Teutonic branch,
knew nothing of it (Vorgeschichte, p. 61 ff.), and the very oldest parts of
the Aryan language point already to the “supreme position of the
husband and father of the household” (Leist, Gräco-ital.
Rechtsgeschichte p.58); that supposition therefore lacks a scientific
basis. (This was meantime confirmed by Otto Schrader, Reallexicon der
indogermanischen Altertumskunde, 1901, p. xxxiii.) It is still more
21
Roman Law

able to construct anything, to organise anything, or to

found a State?11 Or was it not rather that blood-
mixtures within the common mother race, and at the
same time the artificial selection necessitated by
geographical and historical conditions tended to
produce abnormal gifts (naturally with accompanying
important to establish the fact that the “comparative ethnography”
appealed to by Lamprecht has found community of sex nowhere in the
world among human beings. In the year 1896 a small book appeared
which summarises in strictly objective fashion all the researches that
refer to this, Ernst Grosse’s Die Formen der Familie und die Formen der
Wirtschaft, and there we see how the so-called empirical philosophers,
with Herbert Spencer at their head, and the so-called strictly empirical
anthropologists and ethnologists, honoured as “authorities” (with
praiseworthy exceptions like Lubbock), simply started from the a priori
supposition that there must be community of sex among simpler
peoples, since the law of evolution demands it, and then everywhere
discovered facts to confirm this. But more exact and unprejudiced
investigations now prove for one race after the other that community of
sex does not exist there, and Grosse may put down the apodictic
assertion: “There is, in fact, no single primitive people whose sexual
relations approached a condition of promiscuity or even hinted at such
a thing. The firmly knit individual family is by no means a late
achievement of civilisation, it exists in the lowest stage of culture
without exception” (p.42). Exact proofs are yet to be found in Grosse;
besides, all anthropological and ethnological accounts of recent years
testify how very much we have undervalued the so-called savages, how
superficially we have observed and how thoughtlessly we have drawn
conclusions about primitive conditions, of which we know absolutely
nothing with surety. [Lately Heinrich Schurz, in his Altersklassen und
Männerbunde, eine Darstellung der Grundformen der Gesellschaft, 1902,
has fully shown that the arguments for promiscuity in early times,
which are wont to be drawn from phenomena of “free love” to-day, are
to be interpreted quite differently, and that, on the contrary, “with the
most primitive races marriage, and in connection with it the formation
of society on a purely sexual basis, is more strongly developed” (p.
22
Houston Stewart Chamberlain

phenomena of reversion)?12 I do not know. Certain

it is, however, that previous to the Romans there was
no sacred, worthy, and at the same time practical
regulation of matters relating to marriage and the
family; no more was there a rational law resting on a
sure foundation capable of being widened, or a
200).] As this subject is essentially of the greatest importance and
throws a peculiar and very noteworthy sidelight upon scientific modes
of thought and power of thought in our century, I should like to add one
more instructive example. The original inhabitants of central Australia
are, as is well known, supposed to belong to the most backward,
intellectually, of all peoples; Lubbock calls them “wretched savages, who
cannot count their own fingers, not even the fingers of one hand” (The
Prehistoric Age, Germ. trans., ii. 151). One can imagine with what
contempt the traveller Eyre wrote of the “remarkably peculiar cases
where marriage is forbidden” in this wretched race, “where a man may
not marry a woman who has the same name as he, even though she be
by no means related to him.” Strange! And how could these people
have such inexplicable caprices when it would have been their duty,
according to the theory of evolution, to have lived in absolute
promiscuity? Since that time two English officials, who lived for years
among these savages and gained their confidence, have given us a
detailed account of them (Royal Society of Victoria, April 1897, summary
in Nature, June 10, 1897), and it appears that their whole intellectual
life, their “conceptive life” (if I may say so) is so incredibly complicated
that it is almost impossible for one of us to comprehend it. These
people, for example, who are supposed not to be able to count up to five,
have a more complicated belief than Plato with regard to the
transmigration of souls, and this faith forms the basis of their religion.
Now as to their marriage laws. In the particular district spoken of here
there lives an ethnically uniform race, the Aruntas. Every marriage
union with strange races is forbidden; thereby the race is kept pure. But
the extremely baneful effects of long-continued inbreeding
(Lamprecht’s Teutons would long have become Cretins before they ever
entered into history!) are prevented by the Australian blacks by the
following ingenious system: they divide (mentally) the whole race into
23
Roman Law

political organisation able to resist the storms of a

chaotic time. Though the simply constructed
mechanism of the old Roman State might frequently
be awkward in its working and require thorough
repairs, it was yet a splendid structure well adapted to
the time and to its purpose. In Rome, from the first,
four groups; for simplicity I designate them a b c d. A youth from the
group a may only marry a girl from group d, the male b only the female
c, the male c only the female b, the male d only the female a. The
children of a and d form once more the group b, those of b and c the
group a, those of c and b the group d, those of d and a the group c. I
simplify very much and give only a skeleton, for I fear my European
reader would otherwise soon reach the stage of likewise not being able
to count up to five. That such a system imposes important restrictions
on the rights of the heart cannot be denied, but I ask, how could a
scientifically trained selector have hit upon a more ingenious expedient
to satisfy the two laws of breeding which are established by strict
observation, namely, (1) the race must be kept pure, (2) continuous
inbreeding is to be avoided? (see chap iv.) Such a phenomenon calls for
reverence and silence. When contemplating it one gladly keeps silent
regarding such systems as those already mentioned as belonging to the
end of the nineteenth century. But what must we feel when we turn our
glance from the extremely laboured efforts of these worthy Austrialian
Aruntas to Rome and behold here, in the middle of a frightful world, the
sacredness of marriage, the legal status of the family, the freedom of the
head of household rising up out of the heart of the people, for it was at a
much later period that it was engraved on bronze tables?
11
Thierry, Mommsen, &c.
12
Till a short time ago it was a favourite practice to represent the
population of Rome as a kind of medley of peoples living side by side: It
was supposed to have borrowed its tradition from Hellenic units, its
administration from Etruscan ones, its law from Sabines, and its
intellect from Samnites, &c. Thus Rome would have in a way been a
mere word, a name, the common designation of an international
trysting-place. This soap-bubble, too, which rose from the brain foam of
pale professors, has burst, like so many others, in Mommsen’s hands.
24
Houston Stewart Chamberlain

the idea of Law had been finely conceived and finely

carried into effect; moreover its limitations were in
keeping with the conditions. Still more was this the
case with the family. This institution was to be found
in Rome alone – and in a form more beautiful than
the world has ever since seen! Every Roman citizen,
whether Patrician or Plebeian, was lord, yea, king in
his house: his will extended even beyond death by the
unconditional freedom of bequest, and the sanctity of
the last testament; his home was assured against

Facts and reason both prove the absurdity of such a hypothesis, “which
attempts to change the people, which, as few others, has developed its
language, state, and religion purely and popularly, into a confused
rubble of Estruscan, Sabine, Hellenic, and unfortunately even Pelasgic
ruins” (Rôm. Gesch. i., 43). The fact, however, that this thoroughly
uniform and peculiar people originated from a crossing of various
related races is undeniable, and Mommsen himself clearly shows this;
he admits two Latin and one Sebellian race; at a later time all kinds of
elements were added, but only after the Roman national character was
firmly developed so that it assimilated the foreign portion. It would,
however, be ridiculous to “assign Rome to the number of mixed
peoples” (see p.44). It is quite a different thing to establish the fact that
the most extraordinary and most individual talents and the sturdiest
power are produced by crossing. Athens was a brilliant example, Rome
another, Italy and Spain in the Middle Ages equally so, just as Prussia
and England prove it at the present day (more details in chap. 4). In this
respect the Hellenic myth that the Latins were descended from Hercules
and a Hyperborean maiden is very noteworthy as one of those
incomprehensible traits of innate wisdom; whereas the desperate
efforts of Dionysius of Halicarnassus (who lived at the time of the birth
of Christ) to prove the descent of the Romans from Hellenes, “as they
could not possibly be of barbarian origin,” shows with touching
simplicity how dangerous a conjunction of great learning with
preconceived opinions and conclusions can become!
25
Roman Law

official interference by more solid rights than ours; in

contrast to the Semitic patriarchate he had introduced
the principle of agnation13 and thereby swept entirely
aside the interference of mothers-in-law and women
as a whole; on the other hand, the materfamilias was
honoured, treasured, loved like a queen. Where was
there anything to compare with this in the world at
the time? Outside of civilisation perhaps; inside it
nowhere. And so it was that the Roman loved his
home with such enduring love and gave his heart’s
blood for it. Rome was for him the family and the
law, a rocky eminence of human dignity in the midst
of a surging sea.
Let no one fancy that anything great can be
achieved in this world unless a purely ideal power is
at work. The idea alone will of course not suffice;
there must also be a tangible interest, even if it should
be, as in the case of the martyrs, an interest pertaining
to the other world; without an additional ideal
element the struggle for gain alone possesses little
power of resistance; higher power of achievement is
supplied only by a “faith,” and that is what I call an
“ideal impulse” in contrast to the direct interest of the
moment — be that last possession or anything else
whatever. As Dionysius says of the ancient Romans,
13
The family resting upon relationship to the father alone, so that only
descent from the father’s side by males, and not that from the mother’s
side, establishes relationship at law. Only a marriage contracted in the
right forms produces children who belong to the agnate family.
26
Houston Stewart Chamberlain

“they thought highly of themselves and could not

therefore venture to do anything unworthy of their
ancestors” (i. 6); in other words, they kept before
their eyes an ideal of themselves. I do not mean the
word “ideal” in the degenerate, vague sense of the
“blue flower” of Romance, but in the sense of that
power which impelled the Hellenic sculptor to form
the god from out the stone, and which taught the
Roman to look upon his freedom, his rights, his union
with a woman in marriage, his union with other men
for the common weal, as something sacred, as the
most valuable gift that life can give. A rock, I said,
not an Aristophanic Cloud-cuckoo-land. As a dream,
the same feeling existed more or less among all Indo-
Europeans: we meet with a certain holy awe and
earnestness in various forms among all the members
of this family; the persevering power to results things
practically was, however, given to no one so much as
to the Roman. Do not believe that “robbers” can
achieve results such as the Roman State, to the
salvation of the world, achieved. And when once you
have recognised the absurdity of such a view, search
deeper and you will see that these Romans were
unsurpassed as a civilising power, and that they could
only be that because, though they had great faults and
glaring intellectual deficiencies, they yet possessed
high mental and moral qualities.
THE STRUGGLE AGAINST THE SEMITES
27
Roman Law

Mommsen tells (i. 321) of the alliance between

the Babylonians and the Phoenicians to subdue
Greece and Italy, and is of the opinion that “at one
stroke freedom and civilisation would have been
swept off the face of the earth.” We should weigh
carefully what these words mean uttered by a man
who commands the whole field as no one else does;
freedom and civilisation (I should rather have said
culture, for how can one deny civilisation to the
Babylonians and Phoenicians, or even to the
Chinese?) would have been destroyed, blotted out for
ever! And then take up the books which give a
detailed and scientific account of the Phoenician and
Babylonian civilisation, in order to see clearly what
foundation there is for such a far-reaching statement.
It will not be difficult to see what distinguishes a
Hellenic “Colony” from a Phoenician Factory: and
from the difference between Rome and Carthage we
shall readily understand what an ideal power is, even
in the sphere of the driest, most selfish politics of
interest. How suggestive is that distinction which
Jhering (Vorgeschichte, p.176) teaches us to draw
between the “commercial highways” of the Semites
and the “military roads” of the Romans: the former
the outcome of the tendency to expansion and
possession; the latter the result of the need of
concentrating their power and defending the
28
Houston Stewart Chamberlain

homeland. We shall also learn to distinguish between

authentic “robbers,” who only civilise in as far as
they understand how to take up and utilise with
enviable intelligence all discoveries that have a
practical worth and to encourage in the interests of
their commerce artificial needs in foreign peoples,
but who otherwise rob even their nearest relations of
every human right — who nowhere organise
anything but taxes and absolute slavery, who in
general, no matter where they plant their foot, never
seek to rule a country under a whole systematic
government, and, being alive only to their
commercial interests, leave everything as barbarous
as they find it: we shall, as I say, learn to distinguish
between such genuine robbers and the Romans, who,
in order to retain the blessings that attend the order
reigning in their midst, are compelled — beginning
from that unchanging centre, the home — slowly and
surely to extend their ordering and clearing influence
all round; they never really conquer (when they can
help it); they spare and respect every individuality;
but withal they organise so excellently that people
approach them with the prayer to be allowed to share
in the blessings of their system14; their own splendid
14
One of the last instances are the Jews who (about year 1) came to
Rome with the urgent request that it should deliver them from their
Semitic sovereigns and make them into a Roman province. It is well
known what gratitude they afterwards showed to Rome, which ruled
them so mildly and generously.
29
Roman Law

“Roman law” they generously make accessible to

ever-increasing numbers, and they at the same time
unite the various foreign legal systems, taking the
Roman as a basis, in order to gradually to evolve
therefrom a “universal international law.”15 This is
surely not how robbers act. Here we have rather to
recognise the first steps towards the pertinent
establishment of Indo-European ideals of freedom
and civilisation.
Livy says with justice: “It was not only by our
weapons but by our Roman legislation that we won
our far-reaching influence.”
It is clear that the commonly accepted view of
Rome as the conquering nation above all others is
very one-sided. Indeed even after Rome had broken
with its own traditions, or rather when the Roman
people had in fact disappeared from the earth, and
only the idea of it still hovered over its grave, even
15
Esmarch, in his Römische Rechtsgeschichte, 3rd ed., p. 185, writes as
follows on the frequently very vaguely developed and defined jus
gentium: “This law in the Roman sense is to be regarded neither as an
aggregate of accidentally common clauses, formed from a comparison of
the laws that were valid among all nations known to the Romans, nor as
an objectively existing commercial law rocognised and adopted by the
Roman State; it should be regarded, according to its essential substance,
as a system of order for the application of private law to international
relations, evolved out of the heart of Roman popular consciousness.”
Within the several countries the conditions of law were as little changed
as possible by the Romans, one of the surprising proofs of the great
respect which in the period of their true greatness they paid to all
individuality.
30
Houston Stewart Chamberlain

then it could not depart far from this great principle

of its life: even the rough soldier-emperors were
unable to break this tradition. And thus it is that the
real military hero — as individual phenomenon —
does not occur at all among the Romans. I will not
make any comparisons with Alexander, Charles XII
or Napoleon. I ask, however, whether the one man
Hannibal, as an inventive, audacious, arbitrary prince
of war, has not displayed more real genius than all
the Roman imperators taken together.
It need scarcely be stated that Rome fought
neither for a Europe of the future nor in the interests
of a far-reaching mission of culture, but simply for
itself; but thanks to this very fact, that it fought for its
own interests with the reckless energy of a morally
strong people, it has preserved from sure destruction
that “intellectual development of mankind which
depends on the Indo-Teutonic race.” This is best
seen clearly in the most decisive of all its struggles,
that with Carthage. If Rome’s political development
had not been so strictly logical up till then, if it had
not betimes subdued and disciplined the rest of Italy,
the deadly blow to freedom and civilisation
mentioned above would assuredly have been dealt by
the allied Asiatics and Carthaginians. And how little
a single hero can do in the face if such situation of
world-wide historical moment, although he alone, it
may be, has taken a comprehensive view of them, is
31
Roman Law

shown by the fate of Alexander, who having

destroyed Tyre meditated embarking on a campaign
against Carthage, but at his early death left nothing
but the memory of his genius. The long-lived Roman
people, on the other hand, was equal to that great
task, which it finally summed up in the monumental
sentence, delenda est Carthago.
What laments and moralisings we have had on
the destruction of Carthage by the Romans, from
Polybius to Mommsen! It is refreshing to meet a
writer who, like Bossuet, simply says: “Carthage was
taken and destroyed by Scipio, who in this showed
himself worthy of his great ancestor,” without any
moral indignation, without the well-worn phrase that
all the suffering which later befell Rome was a
retribution for this misdeed. I am not writing a
history of Rome and do not therefore require to sit in
judgment on the Romans; but one thing is as clear as
the noonday sun; if the Phoenician people had not
been destroyed, if its survivors had not been deprived
of a rallying-point by the complete destruction of
their last city, and compelled to merge in other
nations, mankind would never have seen this
nineteenth century, upon which, with all due
recognition of our weaknesses and follies, we yet
look back with pride, justified in our hopes for the
future. The least mercy shown to a race of such
unparalleled tenacity as the Semites would have
32
Houston Stewart Chamberlain

sufficed to enable the Phoenician nation to rise once

more; in a Carthage only half-burned the torch of life
would have glimmered beneath the ashes, to burst
again into flame as soon as the Roman Empire began
to approach its dissolution. We are not yet free of
peril from the Arabs16, who long seriously threatened
our existence, and their creation, Mohammedanism,
is the greatest of all hindrances to every progress of
16
The struggle which in late years raged in Central Africa between the
Congo Free State and the Arabs (without being much heeded in Europe)
is a new chapter in the old war between Semites and Indo-Europeans
for the supremacy of the world. It is only in the last fifty years that the
Arabs have been advancing from the East Coast of Africa into the
interior and almost up to the Atlantic Ocean; the famous Hamed ben
Mohammed ben Juna, called Tippu-Tib, was for a long time absolute
ruler of an immense realm which reached almost straight across all
Africa with a breadth of about 20 degrees. Countless tribes which
Livingstone in his time found happy and peace-loving have since then in
some cases been destroyed entirely — since the slave-trade to foreign
parts is the chief occupation of the Arabs and never, in the history of
mankind, was carried on to such an extent as in the second half of the
nineteenth century — in other cases the natives have gone a remarkable
moral change by contact with Semitic masters; they have become
cannibals, great stupid children changed into wild beasts. It is, however,
noteworthy that the Arabs, where they found it paid them, have
revealed their culture, knowledge and shrewdness in laying out
magnificent stretches of cultivated land, so that parts of the Congo river
district are almost as beautifully farmed as an Alsatian estate. In
Kassongo, the capital of this rich country, the Belgian troops found
magnificent Arabian houses with silk curtains, bed-covers of satin,
splendidly carved furniture, silver ware, &c.; but the aboriginal
inhabitants of this district had in the meantime degenerated into slaves
and cannibals. A real tangible instance of the difference between
civilising and spreading culture. (See especially Dr. Hinde: The Fall of
the Congo Arabs, 1897, p.66 ff., 184 ff., &c.)
33
Roman Law

civilisation, hanging like a sword of Damocles over

our slowly and laboriously rising culture in Europe,
Asia, and Africa; the Jews stand morally so high
above all other Semites that one may hardly name
them in conjunction with these (their ancestral
enemies in any case from time immemorial), and yet
we should need to be blind or dishonest, not to
confess that the problem of Judaism in our midst is
one of the most difficult and dangerous questions of
the day; now imagine in addition a Phoenician nation,
holding from the earliest times all harbours in their
possession, monopolising all trade, in possession of
the richest capitals in the world and of an ancestral
national religion (Jews so to speak who had never
known Prophets)…! It is no fantastic philosophising
on history but an objectively demonstrable fact that,
under such conditions, that which we call to-day
Europe could have never arisen. Once more I refer to
the learned works on the Phoenicians, but above all,
because available to every one, to the splendid
summary in Mommsen’s Römische Geschichte, Book
III. chap i., “Carthage.”
34
Houston Stewart Chamberlain