BOOK Objects aimed at by the censors. Censorial classification of citizens. hear the opinion pronounced that morality nowadays would be in a far better condition if the Roman institution of the moral censorship were introduced into modern society. It has been looked upon as a most effective complement to the formal law of the state; and a great part of the Roman purity of morals, as one is fain to call it, is attributed to this institution.' This opinion we consider in its extravagance erroneous and untenable, and we will endeavour to reduce to its just dimensions the praise due to the influence of the censorship upon morals. If the Romans themselves were mistaken in their appreciation of the extent to which the censors could and did influence public morality, it is explained by the fact that they were, almost without exception, under the delusion that a man's moral worth is determined by his external mode of life, and especially by the rate of his expenditure. Hence the unceasing war that well-intentioned legislators waged with all kinds of luxury, and the poetical and philosophical declamations against gold, and the vices which it engenders. On this opinion was based the respect for censorial severity; and excessive expenditure was the object against which it was principally directed. In proportion, therefore, as modern thought has risen above that narrow and one-sided view, we must tone down the extravagant praise bestowed on the censorial office, and judge more soberly of its effects. The care of the public morals, as we have seen, did not originally form part of the official duties of the censors. It was but the unintentional, though perhaps natural, result of their duty of distributing the citizens according to their property into the five classes of the centuriate comitia. The censors had to test the capacity a parva origine ortæ, quæ deinde tanto incremento aucta est, ut morum disciplinæque Romanæ penes eam regimen esset. Cicero, Pro Cluent. 46, 129: Præfectus moribus, magister veteris disciplinæ ac severitatis. Cicero, De Leg. iii. 3, 7: Censores mores populi regunto. Mommsen (Röm. Gesch. i. p. 311) says that the moral censorship of the Romans was the cause of the preservation of moral and politica purity in the body of citizens. Jhering (Geist des röm. Rechts, II. i. p. 50) calls it the 'guardian and support of morals.' XII. of every citizen to serve the state. This capacity depended CHAP. on the means which a man had of supporting a family, of keeping together the family estate, and of preserving in his own person the qualities demanded of the citizen and the soldier. As it was impossible for the censors to apply fixed rules when they drew up their lists, they necessarily allowed themselves to be guided to a great extent by their own private judgment. The classification they made could not be called in question or reversed by any other magistrate, or by an appeal to the people. Now, as the drawing up of lists for the senate, knights, and the five classes of citizens placed in the hands of the censors the power of raising or lowering the civil rank of individuals, as the placing of persons into a higher or a lower class of the census had for its consequence the raising or diminution of taxation, the censors were furnished from the beginning with a very extensive power of rewarding and punishing. But this purely administrative duty of the censors had in itself nothing to do with a guardianship of public morals. It was exclusively concerned in determining the relative proportion in which each citizen had to contribute to the necessities of the state. The thousands of vices and sins which pollute man and infect society without offending against penal law or encroaching upon a neighbour's rights; the faults which the moralist and satirist expose and which wise men lament all these were beyond the reach of the censorial power. On a survey of all the cases reported of the exercise of the moral censorship,' it seems difficult to understand how this office should ever have been thought to possess any efficacy or even influence in improving the habits or the tone of morality in Rome. We learn from them that to some extent the censors only filled up the gaps which had been left here and there by the imperfect organization of the civil order and the laws. Thus the bad conduct of soldiers before the enemy, their insubordination or negli A complete list is given by Mommsen, Röm. Staatsr. ii. 1. . 349 Limits of censorial duty. BOOK VI. gence in the service, and the like,' really ought to belong, not to the forum of a moral censor, but of a court-martial. Negligence in the performance of their prescribed duties on the part of subordinate public servants, abuse of official power, of the functions of a juryman, or of the right of voting, are offences which should be punished, not by a moral censor, but by a penal judge. Negligence in the performance of religious duties, we should think, might have been left to be corrected by priests alone. The case is similar with regard to other acts by which the established law was broken. If even perjury was looked upon merely as an offence against morality, and, as such, was branded by the censor, we can find in this circumstance a proof, not of the usefulness of the moral censorship, but of the imperfect state of the criminal law. On the other hand, it appears to belong to the proper and peculiar domain of the guardian of public morals to restrain the paternal and conjugal power, and thus to open the interior of the family to the control of the common law. The censor, in punishing excessive harshness or excessive leniency, in protecting women, children, and slaves, acted according to the milder views of a more civilised age, and established the authority of the more highly developed state over that primeval condition of society in which each family was almost independent and governed by the monarchical power of its chief. Thus the censors appear in this department also simply as men employed in carrying out a reform in the moral and political order of society, which had already been sanctioned, and by no means 1 Liv. xx. 53, xxiv. 18, xxvii. 11. Valer. Max. ii. 9, 7. 2 Of the duties of civil magistrates in the superintendence and control of public worship we shall treat lower down, in chapter xiii. See p. 261. A false oath is, in truth, a religious offence; it was argued that it ought, therefore, properly to be resented by the deity, not by the civil power, as the Emperor Tilerius justly and pithily remarked: Iusiurandum perinde æstimandum, quam si Jovem fefellisset [i.e. the perjurer]; deorum iniurias diis curæ. This perhaps explains why the criminal law did not deal with the offence. We might have expected that the pontifices would possess a right of punishing perjury; but this vas not the case. and owed its origin to them.' Whether the censorship was the fittest instrument to enforce obedience to a purer milder code of manners we shall presently see, when we come to examine the form of proceeding adopted by the censors, and their peculiar qualification for the office of moral guardians. CHAP. XII. the cen Thus the very small sphere of action left for the Practical censors was a kind of neutral ground between the provinces work of under the control of positive law. If the censors punished sors. dishonesty in business, neglect of the respect due to relations, bad domestic management, extravagance, and even suicide, they might, if they were judicious, exercise a wholesome influence; and no objection can be raised to this kind of action, except what has already been hinted at, and will be more fully explained lower down, that moral teachers are ill qualified for their work unless they are themselves above the charge of transgressing the rules they inculcate. of extravagance. The most important services rendered by the censors Restraint to public morality were, in the opinion of the ancient writers, the repression and punishment of extravagance in domestic and personal expenditure. But even here they took only a secondary part; for the application of the provisions of the luxury-laws was, as a rule, in the hands of other magistrates. As it was impossible so to elaborate these laws as to provide against all possible offences, it was found necessary to entrust the censors with discretionary power to act in the spirit of these laws and to supply their omissions. Thus in this respect also the censorship appears efficacious and useful only because the law itself was imperfect and weak. But a law directed against luxury, so long as it is carried out in a strictly legal way, though it may be of little use, cannot do To what extent the censors succeeded in mitigating the rigours of ancient custom in the relation of father to son, of husband to wife, or master to slave, it is impossible to say. Here, indeed, they had ample scope for action. But the little that we hear of their interference does not impress us with the idea that kindliness and justice, affection and duty, domestic purity and dignity, were very much benefited by their care of morals.' BOOK Arbitrary action of the cen sors. any great harm; it cannot very injuriously interfere with the liberty of individuals which is threatened by it, because it is restrained from caprice by the guarantee of legal forms. If, however, a magistrate like the censor, without being obliged to apply fixed principles of law, is guided only by his own personal feeling, and decides questions of fact without a regular legal investigation, and such evidence as a court of law would require: in short, if he acts arbitrarily and capriciously, as the Roman censors did, it may be questioned whether, even with the best intentions for promoting public morality, he will not do more harm than good. This will appear no exaggeration if we examine the procedure followed by the censors in the exercise of their supervision of morals. They were not obliged to examine witnesses, to hear a defence, or to take positive laws for their guidance. Their personal conviction concerning the guilt of a citizen sufficed for their decision, and the measure of the punishment depended entirely upon their good sense and judgment. Not even usage could create a kind of unwritten law to which successive censors might have considered themselves in any way bound. Each new censor acted according to his own personal views, and thus it happened that strict and lenient principles alternately succeeded one another. Usually the censors showed much leniency and indulgence, but from time to time a censor alarmed or shocked the public by his severity. Cato, the model censor, furnished the most striking example of the latter. He is reported to have expelled a senator from the senate for having kissed his wife in the presence of his daughter.3 In assessing property, the same Cato proceeded with the one-sidedness of a fanatic, taxing at pleasure certain articles of property Pliny, Hist. Nat. viii. 51, 77; xxxiv. 6, 14, mentions leges censoriæ;' but it is not probable that these 'leges' were at all like the 'edicta prætoria,' which laid down strict and binding rules. 2 Livy often speaks with approval of those censors who in drawing up the senatorial list were mild and generously connived at delinquencies. 3 Plutarch, Cato M. 17. |