Cantor - Privacy In Rome

/~RIVACY

IN ROME/

by

NORMAN F. CANTOR, COLUMBIA UNIVERSITY 1/

A REPORT SUBMITTED TO THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Special Committee on Science and Law

Confidential -- For Private Circulation Only January 9, 1964

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PRIVACY IN ROME THE PHYSICAL CONDITIONS OF PRIVACY IN THE CITY OF ROME DURING THE SECOND CENTURY OF THE CHRISTIAN ERA During the second century of the Christian era Rome was the largest city of the known world, and her size was reflected in her confused and jumbled streets, her unbalanced architecture, her chaotic planning and most of all, in her residential quarters which, to the astonishment of the ancient world, stretched upwards simply because there was no other place to go.

Writers of the Empire never

weary of telling us of the din and cacophony which prevailed in Rome, and of the lack of privacy and physical peace which her vast size and status as the center of the world imposed upon her citizens. The city itself was divided into several sections, each growing at its own pace and dominated, unlike most modern cities, not by one group or social caste (e.g. a worker's quarter or a 'latin quarter'), but by a number of various elements and social levels.

Within one clump of

the city, the worker might live in a flat next to a merchant and both might be adjacent to a row of stalls or booths. The various residential and commercial areas shared a common center in the massive Forum of Trajan.

Markets and

stalls dotted the city. Beyond the urban area of Rome (Urbs Roma) stretched the rural regions of the Italian countryside (Ager Romanus)

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which was attached to the city by bonds of commerce and agricultural dependence.

Within Rome itself lived one

million two hundred thousand persons.

Unlike the smaller

cities of Greece and Asia Minor, Rome devoted a large portion of her available space to public buildings.

The

resident therefore had to compete with sanctuaries, basilicas, docks, baths, circuses, the large parks of the Emperor and the Campus Martius in order to secure habitation.

As a result he found the space available to him

rather restricted; the expanding birth rate and the inability of the city to expand greatly in size exacerbated the already crowded residential conditions. Builders profited from this situation by erecting apartment houses to fabulous heights:

three and four stories.

These insulae were usually built around a central courtyard, and were constructed so that their floors and windows opened to the outside streets. flats or apartments.

The interiors were divided into

The houses themselves were constructed

with no great care and often collapsed with astonishing ease. The poet Juvenal remarked that none of the inhabitants of Praeneste or Volsinii was "ever afraid of his house tumbling down" and discusses the dread which inhabitants of Rome felt whenever they retired. Of course there were exceptions.

Centers of great

opulence were numerous, and many of Rome's wealthier citizens owned sumptuous villas free both from the bungled architecture

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and the noisy commonness of Roman existence.

But by and

large much of Roman life seems to have conformed to the physical pattern we have sketched.

Of course there were

some areas of retreat and dignity.

The famous baths of

Rome come to mind (thermae).

Modeled along the lines of

the Greek gymnasium,l but far exceeding them in luxury and ostentation, these pools provided a place where the Roman dweller might cleanse his body and discharge the burdens of the day.

It was the accepted meeting place for

friends and a recognized center for conversation and intellectual life.

Yet because the custom of attending the baths

was so pervasive, and because they were opened to so much of Roman society, 2 they did not serve quite the same function as the gymnasiums of the Greeks.

While the latter

were centers of retreat and isolation) and served as houses where a small group might find communal privacy, the baths were a massive exercise in purely public hygiene. They allowed the individual to retreat from the hectic pace of city life, and they granted him a large measure of dignity and peace, but they were not physical centers of privacy: they did not allow either the individual or the group to assert demands of forebearance against any who wished to share the baths with them. 1.

The baths were a relatively late inauguration (2nd century). The men of the Republic had felt that exercise in the Greek fashion was somehow corrupt and degrading.

2.

In point of fact, the baths were open to all of Roman society.

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The overwhelming impression one receives from an examination of this era, is of the intense confusion and bustle of Roman life.

The business of the city

commenced at dawn and rarely ceased till late at night. During the hours of sleep, carts and horses clacked over the cobbled roads, of noise.

During the day the streets were full

Hawkers bellowed, artisans pounded gold and

rare metals, jewelers hammered and thudded, butchers clobbered their victims.

Most of all the roars and cries

of the spectacles dominated the temper of Roman life.

This

noisy aspect of Rome strikes us as modern but we forget that along with this intensity, caused in part by a profound division of labor, Rome was also a primitive city possessing almost none of the industrial advantages which a technological revolution day.

has made possible in our own

Her defects were not balanced by mechanical correc-

tives and the noise and horrors of daily life were not mitigated by the privacy which a modern apartment or the possibilities of rapid transportion to a more suitable environ affords today,

For those denied the councils

of government and the relative tranquility of upper class leisure with its private clubs and philosophic societies, Rome was a public city and life was physically lived in the constant view of one's contemporaries.

There were

few occasions where a man could be truly alone:

the

vices which brought fame to Rome and which we think demand

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a certain amount of privacy, were conducted with aplomb before onels friends and neighbors.

The incredible amount of

local gossip gives ample proof of this.

Yet it would be a

mistake to assume that this lack of physical privacy resulted in the total destruction of the concept of privacy itself.

Rome was the first modern city and as the physical

privacy allotted the individual decreased, his emotional privacy increased.

This was a direct consequence of the

division of labour, (and hence the division of men from each other) which pervaded the city, and of the sheer weight of numbers which insured the individual that a great many of the people with whom he came in contact would not seriously care about his well being, his doings or his very existence. RIGHTS TO SEXUAL AND BODILY PRIVACY There is no doubt that the Roman world was extraordinarily lascivious.

Sexuality was an accepted

and encouraged fact of daily experience.

Prostitution,

both male and female, flourished throughout the empirej roadside taverns were nearly always staffed with barmaids willing to exchange their favours for money.

Adultery

among members of both sexes was frequent. Homosexuality, sodomy and perversions were common. The salacity of the Roman world is in part attributable to the general pattern of sexual looseness which is present in nearly all of antiquity.

The Romans were per-

fectly conventional in their opinion that private sexual

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acts were a matter in which it was not proper for a government or an individual to interfere.

But the extent of the

sexual license, which included the female population as well as the male, can be traced to the fact that Rome was perhaps the first of the ancient cities which released a great many women of all classes from the bondage of their husbands and left them free to amuse themselves in a variety of sexual pursuits. Marriages in the period of the Empire were made (usually) by consent (sine manu), and the freedom accorded a young woman in the choice of a husband was matched in the freedom allowed to her sexual desires after the marriage. 3

The complex Roman legal system had re-

moved the chief reason for Greek women's purity:

the need

to bear untarnished a line of male heirs; and the Roman matron used this liberty to the fullest.

Since romantic

matches in the modern sense were uncommon (love was a consequence

not a cause of marriage) there was really no

obstacle to widespread licentiousness. While the Roman male indulged in the fleshy delights of harlots, his wife sought her satisfaction either amongst the husbands of her acquaintances or among her own servants.

Often she expressed her sexual freedom

by acts of cruelty or perversion rather than through the more normal channels of a straightforward fornication.

3.

The great jurist Salvius Iulianus maintained that "nuptiae consensu contrahentium fiunt; nuptiis filiam familias consentire oportet. 1I

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Martial and Juvenal abound in stories and epigrams detailing the variety of lovers this or that woman took to her bed and the perversions they indulged in.

Of course the wide-

spread profligacy of the Empire had a corrosive effect on the institution of marriage itself, and this period is marked by a growing number of divorces and public scandals. No discussion of the rights of sexual privacy is complete without an attempt to analyze the significance of those incredible spectacles of gore and licentiousness to which the entire populace of Rome was addicted.

In an

obvious sense the gladiatorial scenes) where thousands of men and women were butchered and subjected to the grossest indignities represented public exhibitionism at its worst. Men were denied the right to demand that their contemporaries refrain from observing the most intimate acts of death and personal destruction.

But in another sense these episodes

of perverse blood lust represented a macabre extension of rights to privacy, for it was claimed that no one had the right to interfere with the slaughter in the arena; that so long as the murders were sanctioned by the custom of combat they were the same sort of action as private fornication) and hence the combatants and spectators were entitled to demand non-interference from all who witnessed their bouts.

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Although this is not a completely satisfactory use of the notion of private rights, it does suggest the dominant characteristic of these rights in the period of the Empire.

So much of a Roman's sexual and personal

freedom was unrestricted that his private sphere of action included deeds which by their nature (e.g. the murder of another gladiator) drastically interfered with the liberty of another.

Some of these were institutionalized

in the bloody combats of the Colosseum. Others, such as the sexual mistreatment of slaves, were common aspects of private conduct.

In many respects Roman life and society had

so expanded the rights to sexual and bodily privacy that they passed the usual limit to private actions, which is fixed at the point where one man's intentions threatens another's right to be left in peace.

In passing this

limit, which had been observed to some extent in Athens and which is at the cornerstone of all western democracies, and which serves to insure that all members of society have equal rights to privacy, Roman sexual mores passed into that condition which is known as anarchy. Ironically the absence of sexual limitation was in precise proportion to their presence in almost all other fields of human endeavor.

As many writers have noted, the

presence of widespread rights to sexual privacy usually has as its correlative a denial of those rights in the fields of politics and statecraft in general o

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RIGHTS TO PRIVACY OF SPEECH It has been frequently remarked that the prospects for human happiness were greater under the reign of Hadrian than at any other time in human existence. truth to this contention.

There is some

During the second century of

the Christian era) Rome consolidated her vast gains, insured domestic tranquility throughout her territories) provided for the physical well-being of several thousand of her subjects and brought the blessings of peace to the known world.

But we should not forget that the structure

of government was despotic and decidedly opposed to the extension of those prerogatives which constitute rights to privacy in the domain of thought and speech.

The

Empire had begun as an exercise in tyranny, and from the reign of Tiberius to that of Vitellius all "Rome groaned beneath an unremitting tyranny which exterminated the ancient families of the Republic) and was fatal to almost every virtue) and every talent, that arose in that unhappy period.,,4 With the ascension of Nerva to the throne the worst excesses of the 'iron period' were alleviated. Much of the capricious abuse of authority vanished at the death of Domitian.

But the government, even during the

compar tively mild period of the rule of the Antoinines (Second century A.D,)) thought of itself as an entity

4.

Gibbon, The Decline & Fall of the Roman Empire) Viking Edition) p. 108,

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distinct and isolated from the masses, and took every precaution to insure either their support or their suppression. Speech in particular was closely observedo Spies had always been a part of the government, and during the first century of the Empire denouncements and informers were rife throughout the land.

But under

the rule of Hadrian the secret police, which was originally a part of the army itself, was expanded along lines borrowed from the Persian monarchy.

Since speech was

the principal shaper of public opinion, and far more easily spread than the written word, the Emperors held the conversations of their citizens to be of singular significance, and as a consequence did not recognize any province of private speech or conversation.

Friedlander,

in talking of imperial repressions remarks that Iinot only the confidential phrase, uttered without malice in the exhilaration of wine, might testify against the speaker, but [that] the victims were surrounded with spies, and their every look or sigh or murmur noted down, their thoughts filched from them, so as to punish their guiltless trustfulness with death. 115 Of course the upper classes were special targets of the frumentarii, or secret police; Apollonius remarked that only a politician who longed for death would suggest a reform of state. (The Roman legal system, dominated as

5.

Friedlander, Roman Life and Manners, Vol. 1, p. 223. 10

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it was by the authority of the judge, over whose operations the Knperor presided, served to augment the power of the spy system.)

But the lower classes and society in general felt

the weight of the

omnipresent informer.

Nowhere within

the bounds of the city and the reach of the secret police was conversation private or free.

Juvenal claims that

even though the slaves of some merchant are silent, his horses, dogs and walls will speak. This pattern of repressive observation influenced the moral climate of the Roman world and was both a cause and a consequence of the enormous amount of social gossip and snooping which was so prevalent in Rome.

It was

extraordinarily hard for a citizen to assert his right to privacy of speech, for speech was part of the public domainj what a man overheard, by stealth or cunning, was his possession, and he felt free to use it either to embarass or to blackmail the man who had spoken. Thus a pattern of tyranny created a social system which denied the individual the right to consider his speech inviolable from malacious observation.

When we consider

in addition, the fatuous quality of much of ancient education, it should come as no surprise that the period of the Empire lacked a significant discussion of the foundations of statecraft, and that many of the writers and thinkers of this era, trapped between the vain rhetoric of their schooling and the vigilance of their government, contributed only sterile mouthings to the cultural life of the-world.

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RIGHTS TO PRIVACY OF RELIGION; AND

AUGMENTEb COMMUNICATIONS.

(A) "The various modes of worship which prevailed in the Roman World" asserted Gibbon, "were all considered by the people as equally true, by the philosopher as equally false, and by the magistra te as equally useful. Gibbon is right.

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Religious pluralism was an accepted

fact of life during almost the entire period of the Empire before Christianity assumed the role of a state religion in the fourth century.

During the early days of the Empire,

under the rule of despotic emperors like Tiberius and Nero, the old pagan religion had been associated with emperor worship and both had combined to form some sort of official ritual.

But by the second century this was

mere form and show:

it can be safely asserted that there

was little or no life left in the gestures of paganism, while emperor worship had lost its oriental solemnity and become an exercise in prudence. The most varied and amazing sects flourished within the Empire, each free to follow its own calling so long as they paid token homage to propriety in the observance of accepted custom and practice.

Eastern mystery cults held

their services in the city and the suburbs.

Philosophers

lectured on the vanity of this or the next life. practiced their ancestral rites. their minor variations.

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Jews

Christians dabbled in

There were occasional persecutions

Gibbon, Op.Cit. p. 50 12

of course.

But there was no genuine religious discrimination.

The Christians came to grief on a matter of manners and not on a substantive religious issue.

Had they merely been

more willing to observe traditional rites while maintaining their own views, they would have been less singled out for violence and injustice. 7 In this respect the tolerance accorded private thought differed remarkably from that accorded overt speech.

While the government assumed it had a positive

right to overhear conversation and speech, and to make use of the knowledge it gained, it made no such attempt to either learn its citizens' private thoughts, or to coerce them into a particular pattern or style of mental life. The freedom granted to religious practices is but an extension of the freedom granted to the life of the inner mind under the Emperors. (B)

It remains for us only to briefly indicate

the salient features of communications during the Second century.

Travel was easier during this time than at any

other time in previous history.

Yet Rome lacked a private

mail system entirely, and the individual who wished to send a message had to rely on the speed or strength of his slaves. There is no doubt that messages sent in this fashion were not regarded as private and inviolable.

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Law cases abound

There was comparatively little anti-Christian persecution in the 2nd Century.

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where the prosecutor presents an intercepted letter as evidence.

In general however, the scarcity of written commu-

nication does not make this an important area of study for our purposes.

SUMMA In Rome we see little of that subtle inter penetration of the public and private spheres which characterized so much of Greek life.

A sharp cleavage existed between

the demands of the government and the obligations of public life, and an individual's own personal actions and tasks. The government conceived of itself as a hostile element within the bounds of society and took pains to insure its continuity by observing and controlling the private speech and actions of its citizens.

In some respects it did not

behave consistently; while speech was observed, the written word was relatively free and subject to far less onerous censorship.

Thought and the inner attitudes of religious

believers were left untouched and the government made no attempt to positively influence its subjects.

The hysteria

of the games was the closest Roman society came to making tyranny a mass movement.

But the pattern of repression

and control was everywhere and if the government neglected some areas, such as the inner thought-world of the citizens, it did so simply because it lacked the technologic a l res ources to observe more than speech or action.

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But it was in the realm of sexual liberty that the most emphatic political repressions took place, for the government acted under the assumption that by increasing rights to sexual privacy it would decrease the energies remaining for statecraft and politics.

In the end even

this assumption proved fatal and this period of relative tranquility dissolved into chaos and civil war.

Yet

during the second century the government's attitude did contribute to the peace of the Empire, and the extension of sexual rights did result in a general enervation of society. The apathy and sterility of the Roman intellectual world under the Empire, and the morbid preoccupation with cruelty and sexuality, should prompt us again to wonder whether pervasive and very liberal rights to private sexual behavior are unquestionably beneficial for the society which allots them.

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