GENS AND STATE IN ROME.
The legend of the foundation of Rome sets forth that the first
colonization was undertaken by a number of Latin gentes (one hundred, so
the legend says) united into one tribe. A Sabellian tribe (also said to
consist of one hundred gentes) soon followed, and finally a third tribe
of various elements, but again numbering one hundred gentes, joined
them. The whole tale reveals at the first glance that little more than
the gens was borrowed from reality, and that the gens itself was in
certain cases only an offshoot of an old mother gens still existing at
home. The tribes bear the mark of artificial composition on their
foreheads; still they were made up of kindred elements and after the
model of the old spontaneous, not artificial tribe. At the same time it
is not impossible that a genuine old tribe formed the nucleus of every
one of these three tribes. The connecting link, the phratry, contained
ten gentes and was called curia. Hence there were thirty curiae.
The Roman gens is recognized as an institution identical with the
Grecian gens. The Grecian gens being a continuation of the same social
unit, the primordial form of which we found among the American Indians,
the same holds naturally good of the Roman gens, and we can be more
concise in its treatment.
At least during the most ancient times of the city, the Roman gens had
the following constitution:
1. Mutual right of inheritance for gentiles; the wealth remained in the
gens. Paternal law being already in force in the Roman the same as in
the Grecian gens, the offspring of female lineage were excluded.
According to the law of the twelve tablets, the oldest written law of
Rome known to us, the natural children had the first title to the
estate; in case no natural children existed, the agnati (kin of male
lineage) took their place; and last in line came the gentiles. In all
cases the property remained in the gens. Here we observe the gradual
introduction of new legal provisions, caused by increased wealth and
monogamy, into the gentile practice. The originally equal right of
inheritance of the gentiles was first limited in practice to the agnati,
no doubt at a very remote date, and afterwards to the natural children
and their offspring of male lineage. Of course this appears in the
reverse order on the twelve tablets.
2. Possession of a common burial ground. The patrician gens Claudia, on
immigrating into Rome from Regilli, was assigned to a separate lot of
land and received its own burial ground in the city. As late as the time
of Augustus, the head of Varus, who had been killed in the Teutoburger
Wald, was brought to Rome and interred in the gentilitius tumulus; hence
his gens (Quinctilia) still had its own tomb.
3. Common religious rites. These are well-known under the name of sacra
gentilitia.
4. Obligation not to intermarry in the gens. It seems that this was
never a written law in Rome, but the custom remained. Among the
innumerable names of Roman couples preserved for us there is not a
single case, where husband and wife had the same gentile name. The law
of inheritance proves the same rule. By marrying, a woman loses her
agnatic privileges, discards her gens, and neither she nor her children
have any title to her father's estate nor to that of his brothers,
because otherwise the gens of her father would lose his property. This
rule has a meaning only then when the woman is not permitted to marry a
gentile.
5. A common piece of land. In primeval days this was always obtained
when the tribal territory was first divided. Among the Latin tribes we
find the land partly in the possession of the tribe, partly of the gens,
and partly of the households that could hardly represent single families
at such an early date. Romulus is credited with being the first to
assign land to single individuals, about 2.47 acres (two jugera) per
head. But later on we still find some land in the hands of the gentes,
not to mention the state land, around which turns the whole internal
history of the republic.
6. Duty of the gentiles to mutually protect and assist one another.
Written history records only remnants of this law. The Roman state from
the outset manifested such superior power, that the duty of protection
against injury devolved upon it. When Appius Claudius was arrested, his
whole gens, including his personal enemies, dressed in mourning. At the
time of the second Punic war the gentes united for the purpose of
ransoming their captured gentiles. The senate vetoed this.
7. Right to bear the gentile name. This was in force until the time of
the emperors. Freed slaves were permitted to assume the gentile name of
their former master, but this did not bestow any gentile rights on them.
8. Right of adopting strangers into the gens. This was done by adoption
into the family (the same as among the Indians) which brought with it
the adoption into the gens.
9. The right to elect and depose chiefs is not mentioned anywhere. But
inasmuch as during the first years of Rome's existence all offices were
filled by election or nomination, from the king downward, and as the
curiae elected also their own priests, we are justified in assuming the
same in regard to gentile chiefs (principes)--no matter how well
established the rule of choosing the candidates from the same family
have been.
Such were the constitutional rights of a Roman gens. With the exception
of the completed transition to paternal law, they are the true image of
the rights and duties of an Iroquois gens. Here, also, "the Iroquois is
still plainly visible."
How confused the ideas of our historians, even the most prominent of
them, are when it comes to a discussion of the Roman gens, is shown by
the following example: In Mommsen's treatise on the Roman family names
of the Republican and Augustinian era (Römische Forschungen, Berlin,
1864, Vol. I.) he writes: "The gentile name was not only borne by all
male gentiles including all adopted and wards, except, of course, the
slaves, but also by the women.... The tribe (so Mommsen translates gens)
is a common organization resulting from a common--actual, assumed or
even invented--ancestor and united by common rites, burial grounds and
customs of inheritance. All free individuals, hence women also, may and
must claim membership in them. But the definition of the gentile name of
the married women offers some difficulty. This is indeed obviated, as
long as women were not permitted to marry any one but their gentiles.
And we have proofs that for a long time the women found it much more
difficult to marry outside than inside of the gens. This right of
marrying outside, the gentis enuptio, was still bestowed as a personal
privilege and reward during the sixth century.... But wherever such
outside marriages occurred in primeval times, the woman must have been
transferred to the tribe of her husband. Nothing is more certain than
that by the old religious marriage woman was completely adopted into
the legal and sacramental group of her husband and divorced from her
own. Who does not know that the married woman releases her active and
passive right of inheritance in favor of her gentiles, but enters the
legal group of her husband, her children and his gentiles? And if her
husband adopts her as his child into his family, how can she remain
separated from his gens?" (Pages 9-11.)
Here Mommsen asserts that the Roman women belonging to a certain gens
were originally free to marry only within their gens; the Roman gens,
according to him, was therefore endogamous, not exogamous. This opinion
which contradicts the evidence of all other nations, is principally, if
not exclusively, founded on a single much disputed passage of Livy (Book
xxxix, c. 19). According to this passage, the senate decreed in the year
568 of the city, i. e., 186 B. C., (uti Feceniae Hispallae datió,
deminutio, gentis enuptio, tutoris optio idem esset quasi ei vir
testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui
eam duxisset, ob id fraudi ignominiaeve esset)--that Fecenia Hispalla
shall have the right to dispose of her property, to diminish it, to
marry outside of the gens, to choose a guardian, just as if her (late)
husband had conferred this right on her by testament; that she shall be
permitted to marry a freeman and that for the man who marries her this
shall not constitute a misdemeanor or a shame.
Without a doubt Fecenia, a freed slave, here obtains permission to marry
outside of the gens. And equally doubtless the husband here has the
right to confer on his wife by testament the right to marry outside of
the gens after his death. But outside of which gens?
If a woman had to intermarry in the gens, as Mommsen assumes, then she
remained in this gens after her marriage. But in the first place, this
assertion of an endogamous gens must be proven. And in the second
place, if the women had to intermarry in the gens, then the men had to
do the same, otherwise there could be no marriage. Then we arrive at the
conclusion that the man could bequeath a right to his wife, which he did
not have for himself. This is a legal impossibility. Mommsen feels this
very well, and hence he supposes: "The marriage outside of the gens most
probably required not only the consent of the testator, but of all
gentiles." (Page 10, footnote.) This is not only a very daring
assertion, but contradicts also the clear wording of the passage. The
senate gives her this right as a proxy of her husband; they expressly
give her no more and no less than her husband could have given her, but
what they do give is an absolute right, independent of all limitations,
so that, if she should make use of it, her new husband shall not suffer
in consequence. The senate even instructs the present and future consuls
and praetors to see that no inconvenience arise to her from the use of
this right. Mommsen's supposition is therefore absolutely inadmissible.
Then again: suppose a woman married a man from another gens, but
remained in her own gens. According to the passage quoted above, her
husband would then have had the right to permit his wife to marry
outside of her own gens. That is, he would have had the right to make
provisions in regard to the affairs of a gens to which he did not belong
at all. The thing is so utterly unreasonable that we need not lose any
words about it.
Nothing remains but to assume that the woman in her first marriage
wedded a man from another gens and thereby became a member of her
husband's gens. Mommsen admits this for such cases. Then the whole
matter at once explains itself. The woman, torn away from her old gens
by her marriage and adopted into the gentile group of her husband,
occupies a peculiar position in the new gens. She is now a gentile, but
not a kin by blood. The manner of her entrance from the outset excludes
all prohibition of intermarrying in the gens, into which she has come by
marriage. She is adopted into the family relations of the gens and
inherits some of the property of her husband when he dies, the property
of a gentile. What is more natural than that this property should remain
in the gens and that she should be obliged to marry a gentile of her
husband and no other? If, however, an exception is to be made, who is so
well entitled to authorize her as her first husband who bequeathed his
property to her? At the moment when he bequeathes on her a part of his
property and simultaneously gives her permission to transfer this
property by marriage or as a result of marriage to a strange gens, he
still is the owner of this property, hence he literally disposes of his
personal property. As for the woman and her relation to the gens of her
husband, it is he who by an act of his own free will--the
marriage--introduced her into his gens. Therefore it seems quite natural
that he should be the proper person to authorize her to leave this gens
by another marriage. In short, the matter appears simple and obvious, as
soon as we discard the absurd conception of an endogamous Roman gens and
accept Morgan's originally exogamous gens.
There is still another view which has probably found the greatest number
of advocates. According to them the passage in Livy only means "that
freed slave girls (libertae) cannot without special permission, e gente
enubere (marry outside of the gens) or undertake any of the steps which,
together with capitis deminutio minima[25] (the loss of family rights)
would lead to a transfer of the liberta to another gens." (Lange,
Römische Alterthümer, Berlin, 1856, I, p. 185, where our passage from
Livy is explained by a reference to Huschke.) If this view is correct,
then the passage proves still less for the relations of free Roman
women, and there is so much less ground for speaking of their obligation
to intermarry in the gens.
The expression enuptio gentis (marriage outside of the gens) occurs only
in this single passage and is not found anywhere else in the entire
Roman literature. The word enubere (to marry outside) is found only
three times likewise in Livy, and not in reference to the gens. The
phantastic idea that Roman women had to intermarry in the gens owes its
existence only to this single passage. But it cannot be maintained. For
either the passage refers to special restrictions for freed slave women,
in which case it proves nothing for free women (ingenuae). Or it applies
also to free women, in which case it rather proves that the women as a
rule married outside of the gens and were transferred by their marriage
to their husbands' gens. This would be a point for Morgan against
Mommsen.
Almost three hundred years after the foundation of Rome the gentile
bonds were still so strong that a patrician gens, the Fabians, could
obtain permission from the senate to undertake all by itself a war
expedition against the neighboring town of Veii. Three hundred and six
Fabians are said to have marched and to have been killed from ambush.
Only one boy was left behind to propagate the gens.
Ten gentes, we said, formed a phratry, named curia. It was endowed with
more important functions than the Grecian phratry. Every curia had its
own religious rites, sacred possessions and priests. The priests of one
curia in a body formed one of the Roman clerical collegiums. Ten curiae
formed a tribe which probably had originally its own elected
chief--leader in war and high priest--like the rest of the Latin tribes.
The three tribes together formed the populus Romanus, the Roman people.
Hence nobody could belong to the Roman people, unless he was a member of
a Roman gens, and thus a member of a curia and tribe. The first
constitution of the Roman people was as follows. Public affairs were
conducted by the Senate composed, as Niebuhr was the first to state
correctly, of the chiefs of the three hundred gentes. Because they were
the elders of the gentes they were called patres, fathers, and as a body
senatus, council of elders, from senex, old. Here also the customary
choice of men from the same family of the gens brought to life the first
hereditary nobility. These families were called patricians and claimed
the exclusive right to the seats in the senate and to all other offices.
The fact that in the course of time the people admitted this claim so
that it became an actual privilege is confirmed by the legendary report
that Romulus bestowed the rank of patrician and its privileges on the
first senators. The senate, like the Athenian boulê, had to make the
final decision in many affairs and to undertake the preliminary
discussion of more important matters, especially of new laws. These were
settled by the public meeting, the so-called comitia curiata (assembly
of curiae.) The people met in curiae, probably grouped by gentes, and
every one of the thirty curiae had one vote. The assembly of curiae
adopted or rejected all laws, elected all higher officials including the
rex (so-called king), declared war (but the senate concluded peace), and
decided as a supreme court, on appeal, all cases involving capital
punishment of Roman citizens. By the side of the senate and the public
meeting stood the rex, corresponding to the Grecian basileus, and by no
means such an almost absolute king as Mommsen would have it.[26] The
rex was also a military leader, a high priest and a chairman of certain
courts. He had no other functions, nor any power over life, liberty and
property of the citizens, except such as resulted from his disciplinary
power as military leader or from his executive power as president of a
court. The office of rex was not hereditary. On the contrary, he was
elected, probably on the suggestion of his predecessor, by the assembly
of curiae and then solemnly invested by a second assembly. That he could
also be deposed is proved by the fate of Tarquinius Superbus.
As the Greeks at the time of the heroes, so the Romans at the time of
the so-called kings lived in a military democracy based on and developed
from a constitution of gentes, phratries and tribes. What though the
curiae and tribes were partly artificial formations, they were moulded
after the genuine and spontaneous models of a society from which they
originated and that still surrounded them on all sides. And though the
sturdy patrician nobility had already gained ground, though the reges
attempted gradually to enlarge the scope of their functions--all this
does not change the elementary and fundamental character of the
constitution, and this alone is essential.
Meantime the population of the city of Rome and of the Roman territory,
enlarged by conquest, increased partly by immigration, partly through
the inhabitants of the annexed districts, Latins most of them. All these
new members of the state (we disregard here the clients) stood outside
of the old gentes, curiae and tribes and so did not form a part of the
populus Romanus, the Roman people proper. They were personally free,
could own land, had to pay taxes and were subject to military service.
But they were not eligible to office and could neither take part in the
assembly of curiae nor in the distribution of conquered state lands.
They made up the mass of people excluded from all public rights, the
plebs. By their continually growing numbers, their military training and
armament they became a threat for the old populus who now closed their
ranks hermetically against all new elements. The land seems to have been
about evenly divided between populus and plebs, while the mercantile and
industrial wealth, though as yet not very considerable, may have been
mainly in the hands of the plebs.
In view of the utter darkness that enwraps the whole legendary origin of
Rome's historical beginning--a darkness that was rendered still more
intense by the rationalistic and overofficious interpretations and
reports of the juristically trained authors that wrote on the
subject--it is impossible to make any definite statements about the
time, the course and the motive of the revolution that put an end to the
old gentile constitution. We are certain only that the causes arose out
of the fights between the plebs and the populus.
The new constitution, attributed to rex Servius Tullius and following
the Grecian model, more especially that of Solon, created a new public
assembly including or excluding all the members of populus and plebs
according to whether they rendered military service or not. The whole
population, subject to enlistment, was divided into six classes
according to wealth. The lowest limitis in the five highest classes
were: I., 100,000 ass; II., 75,000; III., 50,000; IV., 25,000; V.,
11,000; which according to Dureau de la Malle is equal to about $3,155,
$2,333, $1,555, $800, and $388. The sixth class, the proletarians,
consisted of those who possessed less and were exempt from military
service and taxes. In this new assembly of centuriae (comitia
centuriata) the citizens formed ranks after the manner of soldiers, in
companies of one hundred (centuria), and every centuria had one vote.
Now the first class placed 80 centuriae in the field; the second 22, the
third 20, the fourth 22, the fifth 30 and the sixth, for propriety's
sake, one. To this were added 18 centuriae of horsemen composed of the
most wealthy. Hence, there were 193 centuriae, giving a lowest majority
vote of 97. Now the horsemen and the first class alone had together 98
votes. Being in the majority, they had only to agree, and they could
pass any resolution without asking the consent of the other classes.
This new assembly of centuriae assumed all the political rights of the
former assembly of curiae, a few nominal privileges excepted. The curiae
and the gentes composing them now were degraded to mere private and
religious congregations, analogous to their Attic prototypes, and as
such they vegetated on for a long time. But the assembly of curiae soon
became obsolete. In order to drive also the three old tribes out of
existence, a system of four local tribes was introduced. Every tribe was
assigned to one quarter of the city and received certain political
rights.
Thus the old social order of blood kinship was destroyed also in Rome
even before the abolition of the so-called royalty. A new constitution,
founded on territorial division and difference of wealth took its place
and virtually created the state. The public power of coërcion consisted
here of citizens liable to military duty, to be used against the slaves
and the so-called proletarians who were excluded from military service
and general armament.
After the expulsion of the last rex, Tarquinius Superbus, who had really
usurped royal power, the new constitution was further improved by the
institution of two military leaders (consuls) with equal powers,
analogous to the custom of the Iroquois. The whole history of the Roman
republic moves inside of this constitution: the struggles between
patricians and plebs for admission to office and participation in the
allotment of state lands, the merging of the patrician nobility in the
new class of large property and money owners; the gradual absorption by
the latter of all the land of the small holders who had been ruined by
military service; the cultivation of these enormous new tracts by
slaves; the resulting depopulation of Italy which not only opened the
doors to the imperial tyrants, but also to their successors, the German
barbarians.
FOOTNOTES:
[25] Translator's note.
The term caput received the meaning of legal right of a person from the
legal status of the head of a family.... Legal science extended the
meaning of the term so that it related not alone to slaves, but also to
minors and women. This legal right, so conceived, could be curtailed in
three ways: Capitis deminutio maxima was the loss of the status
libertatis (personal liberty), which included the loss of the status
civitatis and familiae (civil and family rights); the capitis deminutio
minor or media was the loss of the status civitatis (civil rights),
including the loss of the status familiae (family rights); the capitis
deminutio minima was the loss of the status familiae (family rights).
Lange, Römische Alterthümer, Berlin, 1876, Vol. I., p. 204.
[26] Author's note.
The Latin rex is equivalent to the Celtic-Irish righ (tribal chief) and
the Gothic reiks. That this, like the German Fürst, English first and
Danish forste, originally signified gentile or tribal chief is evident
from the fact that the Goths in the fourth century already had a special
term for the king of later times, the military chief of a whole nation,
viz., thiudans. In Ulfila's translation of the Bible Artaxerxes and
Herod are never called reiks, but thiudans, and the empire of the
emperor Tiberius not reiki, but thiudinassus. In the name of the Gothic
thiudans, or king as we inaccurately translate, Thiudareiks (Theodoric,
German Dietrich), both names flow together.