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CHAPTER XXI THE LEGAL POSITION OF THE JEWS IN THE LATER EMPIRE
The empire established by Augustus was, as has been set forth (above, p. 259), a more or less abstract thing. It was the imperium, or supreme authority, which a single community, the city-state of Rome, exercised over all the other communities existing within certain not over sharply defined geographic limits. This imperium was, by Roman statute or series of statutes, almost completely delegated to a single individual. The delegation however was not quite complete, and the legal theory that made it incomplete remained to work no little mischief in a crisis like the death of Nero or Domitian or Commodus.

When Diocletian reorganized the empire in 286 C.E., the theory was completely changed. The imperium was now a dominium; it was the authority that a single man possessed over all the inhabitants of a region greater even than it was under Augustus, and that authority was in point of law as limitless as that of a master over his slaves.

Between Augustus and Diocletian the reign of the Severan emperors, particularly the promulgation of the Edict of Caracalla, the Constitutio Antonina, which extended Roman citizenship to almost all the free 351inhabitants of the empire, may be considered the turning-point of the tendency toward absolutism.[387] It broke finally and completely with the legal theory that the populus Romanus was a paramount community within a complex of other similar and inferior communities. From that time on nearly all those who could possess rights and obligations at all, whether in regard to one another or to the state, were members of the paramount community, and the delegation of the imperium to the princeps, which had until then been subject to the remote but still conceivable possibility of revocation, became irrevocable by the sheer impossibility of conceiving the populus as acting in the only way the populus could legally act, by direct vote when assembled in mass in the Campus Martius.

In the period between Caracalla and Diocletian the vast political machine snapped at many points. Diocletian’s skill enabled it to go on for a considerable time, and yet the changes he instituted were administrative rather than social. Internally the new populus Romanus took its form in the third century.

A calculation of doubtful value makes the population of the empire at that time about 85,000,000.[388] Of these about half were slaves, i.e. at law not participants in the empire at all. The other half were nearly all cives Romani, Roman citizens, and it is the position of these cives that now concerns us.

Upon the civis Romanus devolved the task of maintaining a frightfully expensive governmental machinery. The expense consisted in the fact that a huge 352army had to be maintained on what was practically a war footing all the time, because, as a matter of fact, war with the barbarians on the northern frontier and with the Parthians in the East was always going on. Compared with that, the expenses of the court itself, although considerable, were scarcely important; but an important item was the vast horde of civil employees which the execution of so tremendous a budget necessitated. Then the local civic centers, generally the remains of old independent communities, had an organization of their own that was partly ornamental, but in all circumstances costly. That is to say, a very large share of the available wealth of the empire was diverted into unproductive channels, since it was devoted to the purpose of maintaining a machinery not altogether necessary to guard that wealth.

Many of the nations of modern Europe have a military budget relatively and absolutely greater than that of the Roman empire of the third century; but in these nations the economic system has a high degree of efficiency, compared with that of the older state, and the waste is incalculably less. The great difference lies in the slave system, which was the foundation of ancient society. The total absence of individual incentive wherever the slaves were worked in gangs—and that was, perhaps, true of the majority of slaves—made the efficiency and consequent productivity of each laborer much less.

We must further remember that human waste was also much greater, owing to the absence of all measures 353to restrict it. Only the most elementary of sanitary precautions existed, and they were directed against definite diseases of plainly infectious character. With a great percentage of the population undernourished, the ravages of any disease with epidemic tendencies must have been enormous. Even in the absence of any plague, such a scourge as consumption alone must have been much more generally destructive than it is now. As has been recently suggested, malaria in Italy had a heavy account to answer for in producing the physical debilitation of the populus Romanus, and was therefore a real factor in the gradual decay of the Roman state.[389]

The incidence of the state burdens was not regulated as it is at the present time. Taxes were imposed within certain districts, and upon each district devolved the duty of satisfying the impost. For a long time Italy had been free from such a burden, but even this exceptional position was abrogated by Constantine in 300 C.E.

How each district accomplished its task was a local matter, and was determined by its individual development. Until the reorganization effected by Diocletian, the old national units had in the main been kept intact. That is to say, Egypt remained what it had been under the Ptolemies and for thousands of years before—a strongly centralized kingdom, rigidly bureaucratic, but measurably well organized. Asia, again, was a group of independent cities and certain larger districts, principally rural, the kingdoms of Bithynia, Cappadocia, Galatia, etc. The tax which the particular province had 354to deliver was apportioned among the various units according to their apparent capacity. Here and there a poll-tax existed, levied upon every inhabitant alike, and on the existence of this poll-tax far-reaching theories have been constructed.

The obligation of the individual toward the state was determined by one fundamental fact, viz., domicile, or right of residence. Before the Constitutio Antonina there was only one class of inhabitants that possessed an almost unlimited right of residence, the cives Romani. But even these could not live indiscriminately in Egypt, for example, which was at all times an exceptional province, and was considered a sort of imperial appanage. As a matter of fact, it is in Egypt that we see the first development of the colonatus, destined to be of so fundamental importance in the creation of the feudal system. It may be that the colonatus was found practically everywhere in the Hellenistic states, but its growth in Egypt goes back to Pharaonic times, and its fullest expansion was found there.

The principle of the colonatus was the permanent obligation of the agricultural free laborer to remain on the soil he tilled. Originally it applied only to the state lands, but in the third century these state lands became largely private property, and the serf-like coloni went with them. All over the empire there were still, in spite of the latifundia, or agriculture on a big scale, a large number of peasant proprietors; but with the impossibility of competing with the production of the latifundia, these peasant proprietorships 355were soon converted into holdings resembling the colonatus, or actually that.

Now, as long as the civis Romanus, as a prerogative of his position, paid no tax, his right of residence was unqualified. When he too had to submit to a direct tax, the place where he resided became a matter of prime importance. The tax that was imposed upon any given locality could be met only if all those subject to tax, living there, paid their dues. Consequently those who by birth were domiciled there could not remove themselves without lessening to that extent the power of that district to meet its state obligations. At first, to be sure, this cannot have been a matter of first-rate importance. Changes of domicile after all were rare, and took place principally among the wealthier classes, a fact that made it easy to insure that no loss would accrue to the community abandoned. But as conditions of ordinary living deteriorated, the practice of deserting one’s legal residence became more frequent, and needed the intervention of the central authorities, since the local magistrate had no jurisdiction whatever beyond the strictly circumscribed limits of his commune. As soon as it was possible for a commune to claim from its members, wherever they happened to be, their contribution to the communal tax, there arose the corollary that for all practical purposes the tax-paying member might not leave the place where his tax was due. The colonatus had been applied to the urban laborer.

But the chaining of the individual to his commune was not sufficient unless his paying power was maintained. 356The same motives that impelled men to evade their fiscal duties by change of domicile, would make them idle and sullen paupers in the places where they were forced to remain. It was a part of the state system which the Severan emperors introduced to make the paying power of the citizen certain by means of the compulsory guilds.[390] These latter were natural outgrowths of former voluntary associations. The formation of guilds of laborers, either free or consisting partly of freemen and slave laborers, was as old as the state itself. The evident superiority of training which such groups insured alone justified them. From time to time certain privileges and exemptions were conferred upon them—always in return for definite state functions[391] which they took upon themselves as well as the industrial functions which were their reason for existence. Indeed, in the municipal towns the collegiati, or members of these publicly sanctioned industrial guilds, formed an order of citizenship second only to that of the decurions, or municipal senate.

While the various collegia were at first voluntary associations, it is evident that the sons of members would tend to follow the callings of their fathers without statutory command to that effect. When, however, the dues of the corporation to the state became onerous, the voluntary choice of a calling might leave certain collegia quite deserted. At what time this danger became so serious that special legislation was required, we do not know, but there is a vague and textually uncertain passage in the Life of Alexander Severus, in 357the Historia Augusta, which indicates that a reorganization of the trade-guilds was undertaken by that emperor. If it was so, the appearance soon afterwards of the compulsory guild in full development makes it likely that the compulsory principle was officially recognized or perhaps extended then.

But it was not merely the artisans of the empire that were included in any organization or reorganization of the collegia. Like all other corporate bodies the trade-guilds, if not wholly religious in form, possessed a common cult or ceremony, and this common possession made it easy to consider them as not essentially different from collegia directly and solely religious—the Greek θ?ασοι for example. In these, the voluntary principle remained even after the compulsory guilds were fully developed, although in point of fact they were generally rigidly hereditary at all times. Here too, after Alexander Severus, there must have been a certain legal restriction placed upon arbitrary withdrawal from such cult-organizations, even if their ritual was openly and unmistakably foreign, such as that of the Jews, the orgies of Atthis, or the mysteries of Mithra. Some restriction would be necessary, because membership in these organizations, as far as they were tolerated by law, involved the payment of certain dues to the state, and the state could not see with equanimity the obligation to pay these dues discarded and no new ones assumed in its place.

The dues to the state did not consist altogether, and soon not even principally, in the actual taxes levied 358upon a community, and portioned among its constituent members, whether individuals or corporations. Indeed these latter were paid to what seems to us a wholly disproportionate extent by a small and wealthy class in the community. The taxes, whether they consisted of ground-rent for state lands, harbor-dues, or taxes on certain sales, were principally paid by the large traders and investors, who were in every case the governing body of the local communes. In provinces where a poll-tax was levied, and where a tribute was imposed as on conquered territory, which the province really was, these direct taxes, when brutally executed on the peasant’s grain, were oppressive enough, but in many parts of the Roman world they were in effect λειτουργ?αι, “liturgies,” i.e. the burdens assumed by or imposed upon private persons of making large contributions in service to the state in proportion to their means. The principle of the liturgy was common to most Greek states, and was capable of indefinite extension.

And there was one state burden rapidly increasing in gravity, which was generally met on the principle of the liturgy, although the state too, as early as the time of Trajan,[392] was compelled to attempt it in part. That was the care of incompetents, by which term we may understand all free individuals who could not support themselves wholly by their personal efforts, i.e. widows and orphans, as well as destitute freemen. The proletariat of the empire not only had no share in its burdens, but itself formed the empire’s chief economic burden.

359The organization of the system was of very old standing. From time immemorial the minor children and the women of a family and of a clan had been under the legal control and care of the family’s head. In the developed system of law, the technical terms were tutela and cura, the former being the guardianship of a child until fourteen, the latter the guardianship of a youth until twenty-five, as well as the care of an adult incompetent. This system of guardianship was further extended, but always remained the same in principle. It was the duty of the family to provide for its destitute members, and the legal extension the system underwent was simply that of widening the family circle. Not merely close relatives but remoter kinsmen were drawn into it as far as the obligations of guardianship were concerned; and in default of kinsmen, the guild, society, or commune assumed the wardship of minors, and was answerable for their maintenance.

It is easy to understand how important this item of state service became, when we recall how large a part of the municipal budgets in England during many centuries was concerned with the care of the poor. But after the disintegration of the slave system on its economic side, the number of persons for whose care this provision had to be made must have been much greater than it was in England at any time. If nothing else, the minute care with which the burdens of wardship were apportioned, the precautions against their evasion, the great part its discussion played in legal literature,[393] will make it evident that wardship of minors 360was a vitally important matter, and its administration one of the chief functions of citizenship in the empire. Many groups of men were practically exempted from all other state dues, provided the guardianship of minors within that group was assumed.

The maintenance of the poor is almost a corollary of the compulsory wardship of women and minors. The artisan whose efforts no longer sufficed to maintain his family often absconded, or in very many cases succumbed physically to his tasks, leaving in either case a family for whose wardship his kinsmen or colleagues had to provide. The state foundations instituted and maintained by Trajan and his successors were probably abandoned during the third century, when the tutela was systematized and minutely regulated.

All in all, every member of the state as such had certain fiscal duties to the state, munera, and his performance of these munera determined his place in the state. The social cleavage between the honestiores, the “better classes,” and the humiliores, “the lower classes,” was of very great importance in criminal law, since the severity of the penalty varied according to the class to which the convicted criminal belonged; but we are not told on what basis the judge determined whether any given man was honestior or humilior, and the whole distinction seems somewhat un-Roman.[394] For other purposes the various honors and ranks which multiplied in spite of the sinking significance of the many constituent communities were much less important than the drastically enforced classification of citizens by the taxes they paid.

361The Jews of the Roman empire were to be found in all the classes that existed. As long as innumerable forms of local citizenship existed, distinct from citizenship in the Roman state, Jews might be met in all those groups. But when the Constitution of Caracalla merged all the local forms of citizenship in the civitas Romana, practically all the Jews then living in the empire became Roman citizens, although it is highly likely that the old names did not at once disappear.

Only one exception is known to have been made by Caracalla. A certain class of inhabitants known as the dediticii were excluded from his general grant. To analyze the exact position of these dediticii would demand more detailed argument than can here be offered, especially since it is a highly controversial matter. Recently it has been urged that all those who paid a poll-tax, particularly in Egypt and Syria, were classed as dediticii and consequently excluded from Roman citizenship. For this, however, there is not the remotest evidence. In the Institutes of Gaius[395] there is an unfortunate lacuna where the matter is discussed, but from what is said there, it is likely that as early as the Antonines the dediticii in Rome were a class of freedmen suffering legal disabilities for proven offenses, and that there were few others. The exemption of the dediticii from the benefits of the Edict of Caracalla was therefore perfectly natural, and did not in the least imply the exemption of those who paid the poll-tax in Egypt and Syria, among whom were many Jews.

362As Roman citizens domiciled in the various quarters of the empire, the Jews were subjected to the obligations that went with that domicile. So in Egypt a great number of Jews paid a poll-tax, although many of them, especially in Alexandria, were exempt. In Syria and Asia, where many communities still had tribute to pay, the Jewish members of those communities were equally assessed.

But besides being legally domiciled in some definite place, the Jews in every place formed cult-organizations. Apostasy in the case of the Jew meant no more than the abandoning of this organization, “separating himself from the congregation.”[396] Those who did so found themselves at once obliged to perform the rites of the state worship in the many cities where such rites were legally enforced, or to enter other cult-associations, since it was only as a member of the Jewish corporation that he secured the privilege of abstention.

These Jewish corporations were known as “synagogues,” a term more properly denoting the meetings of the societies. The word was used of other associations as well as of the Jewish. A word of kindred origin and meaning, synodos, was almost a general term for corporation everywhere.[397] However “synagogue” became gradually appropriated by the Jewish collegia, and in inscriptions in which the word occurs it is generally safe to assume a Jewish origin.

Like all other similar corporations or guilds, the Jewish synagogues had special munera. One which was almost unique was the Jewish tax, the fiscus 363Iudaicus, or didrachm, which, since 70, had been levied on all the Jews, originally for the support of the Capitoline temple, but probably long merged into the general fiscus, or imperial treasury. It is unique, because there does not seem to have been any other tax which, like this one, was wholly devoid of local basis, and did not depend on domicile at all. Otherwise membership in the Jewish synagogue conferred a highly valued and general exemption. The Jews could not be required to perform any task that violated their religious conviction. This privilege is formulated in a constitution of Caracalla, but it seems rather a confirmation of one already existing than a new grant.[398]

According to this privilege, Jews were immediately relieved from all dues connected with local or state worship or with the temples. As many Jews were in a financial position that would ordinarily invite the imposition of just these liturgies, that meant a very great relief. All other liturgies, including the tutela both of Jews and of non-Jews, we are expressly told the Jews were subject to.

We know further that the demands upon them did not end there. In Palestine the organization of the Sanhedrin had maintained itself, although only in the form of several schools under the general presidency of the Nasi, whom Romans and Greeks called the Patriarch. The maintenance of these schools and those who labored in them was a religious duty which most Jews voluntarily assumed. The money was collected by apostoli, “envoys,” despatched to the various Jewish 364synagogues for that purpose.[399] The early Christian emperors believed, or professed to believe, that the payment of this tax was a grave burden to the poorer Jews, and that irregularities were committed in its enforcement. The Jewish sources, all of which are Palestinian, naturally show no trace of this complaint; nor is it likely that there was much foundation for it except in certain localities already grievously burdened by constantly increasing dues.

Besides these various classes into which the tax-paying Jewish citizens fell, there were also Jews who did not share in the support of the state at all. Jewish slaves existed in the third and fourth centuries too, but they can scarcely have been numerous. A Jewish slave belonging to a Jewish master was practically only a servant bound for a term of years.[400] Within a relatively short space of time he could demand his freedom by Biblical law. If his master was a pagan, a religious duty devolved upon all other Jews, and particularly the local synagogue, to redeem him.[401] Often, to be sure, that duty could not be carried out. Not every master would sell, and not every synagogue was financially able to supply the necessary funds. In general, however, it added another motive to those already existing that made emancipations frequent.

The social position and occupations of the Jews throughout the empire are only slightly known. For Egypt and Rome we have fuller documents than elsewhere, except for Babylon, which was outside the empire. We have no means of determining whether 365the facts found in Egypt and Rome are in any way typical. One negative statement may however be safely made. They were only to a very slight extent merchants or money-lenders. In most cases they seem to have been artisans. The inscriptions in the Jewish catacombs show us weavers, tent-makers, dyers, butchers, painters, jewelers, physicians.[402] In Egypt we meet sailors and handicraftsmen of all description.[403] Vendors, of course, on a small and large scale were not wholly lacking. Indeed it would be impossible to understand the individual prosperity of some Jews or of some communities except on the assumption of commercial occupations and success. However, in general, commerce was principally in the hands of Syrians and Greeks, especially the former, whose customs and cults spread with them over the Mediterranean.

We may say, in conclusion, that the economic and political position of the Jews in the empire was unique in one sense. There were no other groups that had exactly the same rights, or were subject to exactly the same demands as the Jews. But in another sense that position was not at all unique. Many other groups of men had rights somewhat like those of the Jewish synagogues, and played a part in the social economy similar to theirs; and, as individuals, there was probably nothing to mark out the Jew from his fellows in the community.

We cannot tell how far and how long the Jews would have been able to maintain their position. There seems however to have been nothing in the conditions of the 366Diocletianic empire that threatened the stability of the synagogues in the form in which they were then found. The religious basis of the state—the maintenance of a common cult for the whole empire—had practically been abandoned. At one time, under Aurelian,[404] the emperor’s devotion to the solar cult had almost made of that the state religion. But in general it may be said that the absolutism of Diocletian rendered such bonds unnecessary. Where all men were born subjects or slaves (“slaves of their duties,” servi functionum, the guild-men are called explicitly[405]) of the same master, it could be considered indifferent whether they all maintained the same theology.

But whether the Jews might have maintained their position or not, if the conditions had remained the same, is a purely hypothetical question. When Christianity became the state religion, under Theodosius,[406] a step was taken that Jews must perforce regard as retrogressive. In ancient times participation in the common sacra was of the essence of membership in a state.[407] That principle was, however, tolerantly enforced. In the first place the mere existence of private sacra was not deemed to imperil the public sacra. Secondly, exceptions and exemptions that did not take offensive forms were freely allowed. But when Theodosius established Christianity, he consciously strove to make the ecclesia coterminous with the empire. “As well could those be saved who were not in the ark with Noah,” Cyprian[408] had cried, “as they be saved who are not in the church.” What was originally a group of 367elect, a company of saints (?γιοι), “the salt of the earth,”[409] had been expanded into a world-filling community.

Not only was the ancient theory revived, but it was revived without the qualifications that had made the ancient theory a livable one. No other sacra could be permitted to exist. Not to be in the ecclesia, was not to be in the empire. Only the practical impossibility of really enforcing that theory restrained the zealous and triumphant leaders. Of course, the development of law was continuous. The new basis of citizenship was never actually and formally received as a legal principle. Yet gradually the limitation of civic rights, which non-membership in the church involved, operated to work an exclusion from citizenship itself. In a very short time those who were not within the church were in a very real sense outside the state, merely tolerated sojourners, and subject to all the risks of that precarious condition.
368
SUMMARY

What has been attempted in the foregoing pages is an interpretation of certain facts of Jewish, Roman, and Greek history within a given period. For that purpose it has been necessary to analyze fully the terms used, and in many cases rather to clear away misconceptions than to set forth new points of view. A brief retrospect is here added.

The Jews, as one of the Mediterranean nations, began to come into close contact with Greek civilization about the time of Alexander. Greece was then entering on a new stage in her development. The Macedonian hegemony produced a greater degree of political unity than had been previously achieved, but above all a real cultural unity had been created, and was carried by arms and commerce over the East. To this the Jews, as other nations did, opposed a vigorous resistance; and this resistance was successful in so far as it allowed the creation of a practically independent nation, and particularly it stimulated the independent development of Jewish institutions, especially religious ones.

In religion the Jews came into further and more extensive conflict with their Greek environment. For many centuries all the East had known a great spiritual unrest, from which had grown various religious movements. Of all these the common goal was the attainment 369of a personal immortality, the “salvation of the soul.” Among the Jews too this movement had been active, and had produced concrete results in sects and doctrines. The Jewish aspect of this general movement would have remained a local development, had it not been given a wider field by the unusual position of the Jews, due to their dispersion.

For this dispersion various causes can be assigned. Perhaps the most potent single cause was the fact that the Jews, who rigorously opposed exposure of infants, and encouraged in other ways the growth of their population, increased too rapidly for the very limited resources of their small and niggardly territory. At any rate the kingdoms of the successors of Alexander found Jews as colonists in many of the new foundations in Asia, Syria, and Egypt, especially the last, where, as a matter of fact, Jews had lived from pre-Persian times. Within these new and, in many cases, old communities the doctrines preached in Palestine became a means of propaganda, and enabled the Jews to do more than maintain themselves in the exceptional position which their highly specialized religion necessitated.

The Jews were by no means the only religious group in the Greek communities with proselytizing tendencies. But they were unique in so far as they were permanently connected with an existing national group, with which they maintained relations. This made friction of some sort inevitable at first, since some community of religious observances for all citizens of a single state was axiomatic for ancient times. However, 370the anomaly of the Jewish position became less glaring in course of time.

The first stage of Jewish influence is marked by two things, a constantly increasing dispersion and an equally increasing propaganda that reached all stages of society.

The advance of the power of Rome at first did not change these conditions. In fact that advance materially assisted both the dispersion and its propaganda, since the support of Rome was an invaluable asset for the Hasmonean kingdom. Even the conquest by Pompey had no other effect than to accelerate the indicated development, especially within Italy and Rome itself.

But the relations of the Jews with the Greco-Roman world entered upon a second stage, the stage of armed conflict, when the national and religious aspirations of certain classes of Jews, which culminated in the Messianic hope, came into contact with the denationalizing tendencies of the imperial system. This conflict was in no sense inevitable, and might easily have been avoided. In addition to the internal movements that provoked the series of rebellions between 68 and 135, there was a constant excitation from without. The hereditary enemies of the Greek East and its successor, the Roman Empire—the Persians and their kinsmen and successors, the Parthians—maintained not only their independence but also their hostility, and the fact that the Jews lived in both empires, and that Parthian Jews communicated freely with the others, presented a channel for foreign stimulation to revolt.

371The third stage of Jewish relations consists of an adjustment of the Jews to the rapidly centralizing empire, of which the administrative center was moving eastward. The center of wealth and culture had always been in the East. The reforms of Hadrian and his successors prepared the way for the formal recognition of the new state of things in the Constitutio Antonina, the Edict of Caracalla, which gave Roman citizenship to almost all the freedmen of the empire. This is the great period of Roman law, when, in consequence of the enormously extended application of the civil law, a great impetus was given to the scientific analysis and application of juristic principles. Out of this grew the bureaucratic system perfected by Diocletian, and begun perhaps by Alexander Severus, in which, as told in the last chapter, the attempt was made to classify every form of human activity in its relation to the state.

A new stage of Jewish relations begins with the dominance of Christianity; and that, as was stated at the beginning of this study, lies outside of its scope.

The End


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