THE ROMAN GENS.
ITALIAN TRIBES ORGANIZED IN GENTES.—FOUNDING OF
ROME.—TRIBES ORGANIZED INTO A MILITARY DEMOCRACY.—THE ROMAN
GENS.—DEFINITION OF A GENTILIS BY CICERO.—BY FESTUS.—BY
VARRO.—DESCENT IN MALE LINE.—MARRYING OUT OF THE GENS.—RIGHTS
AND OBLIGATIONS OF THE MEMBERS OF A GENS.—DEMOCRATIC
CONSTITUTION OF ANCIENT LATIN SOCIETY.—NUMBER OF PERSONS IN A
GENS.
When the Latins, and their congeners the Sabellians, the Oscans and the
Umbrians, entered the Italian peninsula probably as one people, they
were in possession of domestic animals, and probably cultivated cereals
and plants.[282] At the least they were well advanced in the Middle
Status of barbarism; and when they first came under historical notice
they were in the Upper Status, and near the threshold of civilization.
The traditionary history of the Latin tribes, prior to the time of
Romulus, is much more scanty and imperfect than that of the Grecian,
whose earlier relative literary culture and stronger literary
proclivities enabled them to preserve a larger proportion of their
traditionary accounts. Concerning their anterior experience, tradition
did not reach beyond their previous life on the Alban hills, and the
ranges of the Appenines eastward from the site of Rome. For tribes
so far advanced in the arts of life it would have required a long
occupation of Italy to efface all knowledge of the country from which
they came. In the time of Romulus[283] they had already fallen by
segmentation into thirty independent tribes, still united in a loose
confederacy for mutual protection. They also occupied contiguous
territorial areas. The Sabellians, Oscans, and Umbrians were in the
same general condition; their respective tribes were in the same
relations; and their territorial circumscriptions, as might have
been expected, were founded upon dialect. All alike, including their
northern neighbors the Etruscans, were organized in gentes, with
institutions similar to those of the Grecian tribes. Such was their
general condition when they first emerged from behind the dark curtain
of their previous obscurity, and the light of history fell upon them.
Roman history has touched but slightly the particulars of a vast
experience anterior to the founding of Rome (about 753 B. C.). The
Italian tribes had then become numerous and populous; they had become
strictly agricultural in their habits, possessed flocks and herds of
domestic animals, and had made great progress in the arts of life. They
had also attained the monogamian family. All this is shown by their
condition when first made known to us; but the particulars of their
progress from a lower to a higher state had, in the main, fallen out of
knowledge. They were backward in the growth of the idea of government;
since the confederacy of tribes was still the full extent of their
advancement. Although the thirty tribes were confederated, it was in
the nature of a league for mutual defense, and neither sufficiently
close or intimate to tend to a nationality.
The Etruscan tribes were confederated; and the same was probably true
of the Sabellian, Oscan and Umbrian tribes. While the Latin tribes
possessed numerous fortified towns and country strongholds, they were
spread over the surface of the country for agricultural pursuits,
and for the maintenance of their flocks and herds. Concentration and
coalescence had not occurred to any marked extent until the great
movement ascribed to Romulus which resulted in the foundation of Rome.
These loosely united Latin tribes furnished the principal materials
from which the new city was to draw its strength. The accounts of these
tribes from the time of the supremacy of the chiefs of Alba down to the
time of Servius Tullius, were made up to a great extent of fables and
traditions; but certain facts remained in the institutions and social
usages transmitted to the historical period which tend, in a remarkable
manner, to illustrate their previous condition. They are even more
important than an outline history of actual events.
Among the institutions of the Latin tribes existing at the commencement
of the historical period were the gentes, curiæ and tribes upon which
Romulus and his successors established the Roman power. The new
government was not in all respects a natural growth; but modified in
the upper members of the organic series by legislative procurement.
The gentes, however, which formed the basis of the organization, were
natural growths, and in the main either of common or cognate lineage.
That is, the Latin gentes were of the same lineage, while the Sabine
and other gentes, with the exception of the Etruscans, were of cognate
descent. In the time of Tarquinius Priscus, the fourth in succession
from Romulus, the organization had been brought to a numerical scale,
namely: ten gentes to a curia, ten curiæ to a tribe, and three tribes
of the Romans; giving a total of three hundred gentes integrated in one
gentile society.
Romulus had the sagacity to perceive that a confederacy of tribes,
composed of gentes and occupying separate areas, had neither the
unity of purpose nor sufficient strength to accomplish more than the
maintenance of an independent existence. The tendency to disintegration
counteracted the advantages of the federal principle. Concentration and
coalescence were the remedy proposed by Romulus and the wise men of
his time. It was a remarkable movement for the period, and still more
remarkable in its progress from the epoch of Romulus to the institution
of political society under Servius Tullius. Following the course of the
Athenian tribes and concentrating in one city, they wrought out in five
generations a similar and complete change in the plan of government,
from a gentile into a political organization.
It will be sufficient to remind the reader of the general facts
that Romulus united upon and around the Palatine Hill a hundred
Latin gentes, organized as a tribe, the Ramnes; that by a fortunate
concurrence of circumstances a large body of Sabines were added to
the new community whose gentes, afterwards increased to one hundred,
were organized as a second tribe, the Tities; and that in the time
of Tarquinius Priscus a third tribe, the Luceres, had been formed,
composed of a hundred gentes drawn from surrounding tribes, including
the Etruscans. Three hundred gentes, in about the space of a hundred
years, were thus gathered at Rome, and completely organized under a
council of chiefs now called the Roman Senate, an assembly of the
people now called the _comitia curiata_, and one military commander,
the _rex_; and with one purpose, that of gaining a military ascendency
in Italy.
Under the constitution of Romulus, and the subsequent legislation of
Servius Tullius, the government was essentially a military democracy,
because the military spirit predominated in the government. But it
may be remarked in passing that a new and antagonistic element, the
Roman senate, was now incorporated in the centre of the social system,
which conferred patrician rank upon its members and their posterity. A
privileged class was thus created at a stroke, and intrenched first in
the gentile and afterwards in the political system, which ultimately
overthrew the democratic principles inherited from the gentes. It was
the Roman senate, with the patrician class it created, that changed the
institutions and the destiny of the Roman people, and turned them from
a career, analogous to that of the Athenians, to which their inherited
principles naturally and logically tended.
In its main features the new organization was a masterpiece of wisdom
for military purposes. It soon carried them entirely beyond the
remaining Italian tribes, and ultimately into supremacy over the entire
peninsula.
The organization of the Latin and other Italian tribes into gentes has
been investigated by Niebuhr, Hermann, Mommsen, Long and others; but
their several accounts fall short of a clear and complete exposition of
the structure and principles of the Italian gens. This is due in part
to the obscurity in which portions of the subject are enveloped, and
to the absence of minute details in the Latin writers. It is also in
part due to a misconception, by some of the first named writers, of the
relations of the family to the gens. They regard the gens as composed
of families, whereas it was composed of parts of families; so that the
gens and not the family was the unit of the social system. It may be
difficult to carry the investigation much beyond the point where they
have left it; but information drawn from the archaic constitution of
the gens may serve to elucidate some of its characteristics which are
now obscure.
Concerning the prevalence of the organization into gentes among the
Italian tribes, Niebuhr remarks as follows: “Should any one still
contend that no conclusion is to be drawn from the character of the
Athenian gennētes to that of the Roman gentiles, he will be bound
to show how an institution which runs through the whole ancient
world came to have a completely different character in Italy and in
Greece.... Every body of citizens was divided in this manner; the
Gephyræans and Salaminians as well as the Athenians, the Tusculans as
well as the Romans.”[284]
Besides the existence of the Roman gens, it is desirable to know the
nature of the organization; its rights, privileges and obligations,
and the relations of the gentes to each other, as members of a social
system. After these have been considered, their relations to the curiæ,
tribes, and resulting people of which they formed a part, will remain
for consideration in the next ensuing chapter.
After collecting the accessible information from various sources
upon these subjects it will be found incomplete in many respects,
leaving some of the attributes and functions of the gens a matter of
inference. The powers of the gentes were withdrawn, and transferred to
new political bodies before historical composition among the Romans
had fairly commenced. There was, therefore, no practical necessity
resting upon the Romans for preserving the special features of a system
substantially set aside. Gaius, who wrote his _Institutes_ in the early
part of the second century of our era, took occasion to remark that the
whole _jus gentilicium_ had fallen into desuetude, and that it was then
superfluous to treat the subject.[285] But at the foundation of Rome,
and for several centuries thereafter, the gentile organization was in
vigorous activity.
The Roman definition of a gens and of a gentilis, and the line in which
descent was traced should be presented before the characteristics
of the gens are considered. In the _Topics_ of Cicero a gentilis is
defined as follows: Those are gentiles who are of the same name among
themselves. This is insufficient. Who were born of free parents.
Even that is not sufficient. No one of whose ancestors has been a
slave. Something still is wanting. Who have never suffered capital
diminution. This perhaps may do; for I am not aware that Scaevola,
the Pontiff, added anything to this definition.[286] There is one by
Festus: “A gentilis is described as one both sprung from the same
stock, and who is called by the same name.”[287] Also by Varro: As
from an Aemilius men are born Aemilii, and gentiles; so from the name
Aemilius terms are derived pertaining to gentilism.[288]
Cicero does not attempt to define a gens, but rather to furnish
certain tests by which the right to the gentile connection might be
proved, or the loss of it be detected. Neither of these definitions
show the composition of a gens; that is, whether all, or a part only,
of the descendants of a supposed genarch were entitled to bear the
gentile name; and, if a part only, what part. With descent in the male
line the gens would include those only who could trace their descent
though males exclusively; and if in the female line, then through
females only. If limited to neither, then all the descendants would be
included. These definitions must have assumed that descent in the male
line was a fact known to all. From other sources it appears that those
only belonged to the gens who could trace their descent through its
male members. Roman genealogies supply this proof. Cicero omitted the
material fact that those were gentiles who could trace their descent
through males exclusively from an acknowledged ancestor within the
gens. It is in part supplied by Festus and Varro. From an Aemilius, the
latter remarks, men are born Aemilii, and gentiles; each must be born
of a male bearing the gentile name. But Cicero’s definition also shows
that a gentilis must bear the gentile name.
In the address of the Roman tribune Canuleius (445 B. C.), on his
proposition to repeal an existing law forbidding intermarriage between
patricians and plebeians, there is a statement implying descent in
the male line. For what else is there in the matter, he remarks, if a
patrician man shall wed a plebeian woman, or a plebeian man a patrician
woman? What right in the end is thereby changed? The children surely
follow the father, (_nempe patrem sequuntur liberi_.)[289]
A practical illustration, derived from transmitted gentile names,
will show conclusively that descent was in the male line. Julia, the
sister of Caius Julius Caesar, married Marcus Attius Balbus. Her name
shows that she belonged to the Julian gens.[290] Her daughter Attia,
according to custom, took the gentile name of her father and belonged
to the Attian gens. Attia married Caius Octavius, and became the mother
of Caius Octavius, the first Roman emperor. The son, as usual, took the
gentile name of his father, and belonged to the Octavian gens.[291]
After becoming emperor he added the names Caesar Augustus.
In the Roman gens descent was in the male line from Augustus back
to Romulus, and for an unknown period back of the latter. None were
gentiles except such as could trace their descent through males
exclusively from some acknowledged ancestor within the gens. But it was
unnecessary, because impossible, that all should be able to trace their
descent from the same common ancestor; and much less from the eponymous
ancestor.
It will be noticed that in each of the above cases, to which a large
number might be added, the persons married out of the gens. Such was
undoubtedly the general usage by customary law.
The Roman gens was individualized by the following rights, privileges
and obligations:
I. _Mutual rights of succession to the property of deceased
gentiles._
II. _The possession of a common burial place._
III. _Common religious rites; sacra gentilicia._
IV. _The obligation not to marry in the gens._
V. _The possession of lands in common._
VI. _Reciprocal obligations of help, defense, and redress of
injuries._
VII. _The right to bear the gentile name._
VIII. _The right to adopt strangers into the gens._
IX. _The right to elect and depose its chiefs; query._
These several characteristics will be considered in the order named.
I. _Mutual rights of succession to the property of deceased gentiles._
When the law of the Twelve Tables was promulgated (451 B. C.), the
ancient rule, which presumptively distributed the inheritance among the
gentiles, had been superseded by more advanced regulations. The estate
of an intestate now passed, first, to his _sui heredes_, that is, to
his children; and, in default of children, to his lineal descendants
through males.[292] The living children took equally, and the children
of deceased sons took the share of their father equally. It will be
noticed that the inheritance remained in the gens; the children of the
female descendants of the intestate, who belonged to other gentes,
being excluded. Second, if there were no _sui heredes_, by the same
law, the inheritance then passed to the agnates.[293] The agnatic
kindred comprised all those persons who could trace their descent
through males from the same common ancestor with the intestate. In
virtue of such a descent they all bore the same gentile name, females
as well as males, and were nearer in degree to the decedent than the
remaining gentiles. The agnates nearest in degree had the preference;
first, the brothers and unmarried sisters; second, the paternal uncles
and unmarried aunts of the intestate, and so on until the agnatic
relatives were exhausted. Third, if there were no agnates of the
intestate, the same law called the gentiles to the inheritance.[294]
This seems at first sight remarkable; because the children of the
intestate’s sisters were excluded from the inheritance, and the
preference given to gentile kinsmen so remote that their relationship
to the intestate could not be traced at all, and only existed in virtue
of an ancient lineage preserved by a common gentile name. The reason,
however, is apparent; the children of the sisters of the intestate
belonged to another gens, and the gentile right predominated over
greater nearness of consanguinity, because the principle which retained
the property in the gens was fundamental. It is a plain inference
from the law of the Twelve Tables that inheritance began in the
inverse order, and that the three classes of heirs represent the three
successive rules of inheritance; namely: first, the gentiles; second,
the agnates, among whom were the children of the decedent after descent
was changed to the male line; and third, the children, to the exclusion
of the remaining agnates.
A female, by her marriage, suffered what was technically called a loss
of franchise or capital diminution (_deminutio capitis_), by which she
forfeited her agnatic rights. Here again the reason is apparent. If
after her marriage she could inherit as an agnate it would transfer
the property inherited from her own gens to that of her husband. An
unmarried sister could inherit, but a married sister could not.
With our knowledge of the archaic principles of the gens, we are
enabled to glance backward to the time when descent in the Latin
gens was in the female line, when property was inconsiderable, and
distributed among the gentiles; not necessarily within the life-time of
the Latin gens, for its existence reached back of the period of their
occupation of Italy. That the Roman gens had passed from the archaic
into its historical form is partially indicated by the reversion of
property in certain cases to the gentiles.[295]
“The right of succeeding to the property of members who died without
kin and intestate,” Niebuhr remarks, “was that which lasted the
longest; so long indeed, as to engage the attention of the jurists,
and even—though assuredly not as anything more than a historical
question—that of Gaius, the manuscript of whom is unfortunately
illegible in this part.”[296]
II. _A common burial place._
The sentiment of gentilism seems to have been stronger in the Upper
Status of barbarism than in earlier conditions, through a higher
organization of society, and through mental and moral advancement. Each
gens usually had a burial place for the exclusive use of its members
as a place of sepulture. A few illustrations will exhibit Roman usages
with respect to burial.
Appius Claudius, the chief of the Claudian gens, removed from Regili, a
town of the Sabines, to Rome in the time of Romulus, where in due time
he was made a senator, and thus a patrician. He brought with him the
Claudian gens, and such a number of clients that his accession to Rome
was regarded as an important event. Suetonius remarks that the gens
received from the state lands upon the Anio for their clients, and
a burial place for themselves near the capitol.[297] This statement
seems to imply that a common burial place was, at that time, considered
indispensable to a gens. The Claudii, having abandoned their Sabine
connection and identified themselves with the Roman people, received
both a grant of lands and a burial place for the gens, to place them in
equality of condition with the Roman gentes. The transaction reveals a
custom of the times.
The family tomb had not entirely superseded that of the gens in the
time of Julius Caesar, as was illustrated by the case of Quintilius
Varus, who, having lost his army in Germany, destroyed himself, and his
body fell into the hands of the enemy. The half-burned body of Varus,
says Paterculus, was mangled by the savage enemy; his head was cut off,
and brought to Maroboduus, and by him having been sent to Caesar, was
at length honored with burial in the gentile sepulchre.[298]
In his treatise on the laws, Cicero refers to the usages of his
own times in respect to burial in the following language: now the
sacredness of burial places is so great that it is affirmed to be wrong
to perform the burial independently of the sacred rites of the gens.
Thus in the time of our ancestors A. Torquatus decided respecting the
Popilian gens.[299] The purport of the statement is that it was a
religious duty to bury the dead with sacred rites, and when possible
in land belonging to the gens. It further appears that cremation and
inhumation were both practiced prior to the promulgation of the Twelve
Tables, which prohibited the burying or burning of dead bodies within
the city.[300] The columbarium, which would usually accommodate several
hundred urns, was eminently adapted to the uses of a gens. In the time
of Cicero the gentile organization had fallen into decadence, but
certain usages peculiar to it had remained, and that respecting a
common burial place among the number. The family tomb began to take the
place of that of the gens, as the families in the ancient gentes rose
into complete autonomy; nevertheless, remains of ancient gentile usages
with respect to burial manifested themselves in various ways, and were
still fresh in the history of the past.
III. _Common sacred rites; sacra gentilicia._
The Roman _sacra_ embody our idea of divine worship, and were
either public or private. Religious rites performed by a gens were
called _sacra privata_, or _sacra gentilicia_. They were performed
regularly at stated periods by the gens.[301] Cases are mentioned in
which the expenses of maintaining these rites had become a burden
in consequence of the reduced numbers in the gens. They were gained
and lost by circumstances, _e. g._, adoption or marriage.[302] “That
the members of the Roman gens had common sacred rites,” observes
Niebuhr, “is well known; there were sacrifices appointed for stated
days and places.”[303] The sacred rites, both public and private, were
under pontifical regulation exclusively, and not subject to civil
cognizance.[304]
The religious rites of the Romans seem to have had their primary
connection with the gens rather than the family. A college of pontiffs,
of curiones, and of augurs, with an elaborate system of worship under
these priesthoods, in due time grew into form and became established;
but the system was tolerant and free. The priesthood was in the main
elective.[305] The head of every family also was the priest of the
household.[306] The gentes of the Greeks and Romans were the fountains
from which flowed the stupendous mythology of the classical world.
In the early days of Rome many gentes had each their own sacellum
for the performance of their religious rites. Several gentes had
each special sacrifices to perform, which had been transmitted from
generation to generation, and were regarded as obligatory; as those of
the Nautii to Minerva, of the Fabii to Hercules, and of the Horatii
in expiation of the sororicide committed by Horatius.[307] It is
sufficient for my purpose to have shown generally that each gens had
its own religious rites as one of the attributes of the organization.
IV. _The obligation not to marry in the gens._
Gentile regulations were customs having the force of law. The
obligation not to marry in the gens was one of the number. It does not
appear to have been turned, at a later day, into a legal enactment;
but evidence that such was the rule of the gens appears in a number of
ways. The Roman genealogies show that marriage was out of the gens, of
which instances have been given. This, as we have seen, was the archaic
rule for reasons of consanguinity. A woman by her marriage forfeited
her agnatic rights, to which rule there was no exception. It was to
prevent the transfer of property by marriage from one gens to another,
from the gens of her birth to the gens of her husband. The exclusion of
the children of a female from all rights of inheritance from a maternal
uncle or maternal grandfather, which followed, was for the same reason.
As the female was required to marry out of her gens her children would
be of the gens of their father, and there could be no privity of
inheritance between members of different gentes.
V. _The possession of lands in common._
The ownership of lands in common was so general among barbarous tribes
that the existence of the same tenure among the Latin tribes is no
occasion for surprise. A portion of their lands seems to have been
held in severalty by individuals from a very early period. No time can
be assigned when this was not the case; but at first it was probably
the possessory right to lands in actual occupation, so often before
referred to, which was recognized as far back as the Lower Status of
barbarism.
Among the rustic Latin tribes, lands were held in common by each tribe,
other lands by the gentes, and still other by households.
Allotments of lands to individuals became common at Rome in the time
of Romulus, and afterwards quite general. Varro and Dionysius both
state that Romulus allotted two jugera (about two and a quarter acres)
to each man.[308] Similar allotments are said to have been afterwards
made by Numa and Servius Tullius. They were the beginnings of absolute
ownership in severalty, and presuppose a settled life as well as a
great advancement in intelligence. It was not only admeasured but
granted by the government, which was very different from a possessory
right in lands growing out of an individual act. The idea of absolute
individual ownership of land was a growth through experience, the
complete attainment of which belongs to the period of civilization.
These lands, however, were taken from those held in common by the
Roman people. Gentes, curiæ and tribes held certain lands in common
after civilization had commenced, beyond those held by individuals in
severalty.
Mommsen remarks that “the Roman territory was divided in the earliest
times into a number of clan-districts, which were subsequently employed
in the formation of the earliest rural wards (_tribus rusticæ_)....
These names are not, like those of the districts added at a later
period, derived from the localities, but are formed without exception
from the names of the clans.”[309] Each gens held an independent
district, and of necessity was localized upon it. This was a step in
advance, although it was the prevailing practice not only in the rural
districts, but also in Rome, for the gentes to localize in separate
areas. Mommsen further observes: “As each household had its own portion
of land, so the clan-household or village, had clan-lands belonging
to it, which, as will afterwards be shown, were managed up to a
comparatively late period after the analogy of house-lands, that is, on
the system of joint possession.... These clanships, however, were from
the beginning regarded not as independent societies, but as integral
parts of a political community (_civitas populi_). This first presents
itself as an aggregate of a number of clan-villages of the same stock,
language and manners, bound to mutual observance of law and mutual
legal redress and to united action in aggression and defense.”[310]
Clan is here used by Mommsen, or his translator, in the place of gens,
and elsewhere canton is used in the place of tribe, which are the
more singular since the Latin language furnishes specific terms for
these organizations which have become historical. Mommsen represents
the Latin tribes anterior to the founding of Rome as holding lands by
households, by gentes and by tribes; and he further shows the ascending
series of social organizations in these tribes; a comparison of which
with those of the Iroquois, discloses their close parallelism, namely,
the gens, tribe and confederacy.[311] The phratry is not mentioned
although it probably existed. The household referred to could scarcely
have been a single family. It is not unlikely that it was composed of
related families who occupied a joint-tenement house, and practiced
communism in living in the household.
VI. _Reciprocal obligations of help, defense and redress of injuries._
During the period of barbarism the dependence of the gentiles upon
each other for the protection of personal rights would be constant;
but after the establishment of political society, the gentilis, now
a citizen, would turn to the law and to the state for the protection
before administered by his gens. This feature of the ancient system
would be one of the first to disappear under the new. Accordingly
but slight references to these mutual obligations are found in the
early authors. It does not follow, however, that the gentiles did
not practice these duties to each other in the previous period; on
the contrary, the inference that they did is a necessary one from
the principles of the gentile organization. Remains of these special
usages appear, under special circumstances, well down in the historical
period. When Appius Claudius was cast into prison (about 432 B. C.),
Caius Claudius, then at enmity with him, put on mourning, as well as
the whole Claudian gens.[312] A calamity or disgrace falling upon one
member of the body was felt and shared by all. During the second Punic
war, Niebuhr remarks, “the gentiles united to ransom their fellows who
were in captivity, and were forbidden to do it by the senate. This
obligation is an essential characteristic of the gens.”[313] In the
case of Camillus, against whom a tribune had lodged an accusation on
account of the Veientian spoil, he summoned to his house before the day
appointed for his trial his tribesmen and clients to ask their advice,
and he received for an answer that they would collect whatever sum he
was condemned to pay; but to clear him was impossible.[314] The active
principle of gentilism is plainly illustrated in these cases. Niebuhr
further remarks that the obligation to assist their indigent gentiles
rested on the members of Roman gens.[315]
VII. _The right to bear the gentile name._
This followed necessarily from the nature of the gens. All such persons
as were born sons or daughters of a male member of the gens were
themselves members, and of right entitled to bear the gentile name. In
the lapse of time it was found impossible for the members of a gens
to trace their descent back to the founder, and, consequently, for
different families within the gens to find their connection through a
later common ancestor. Whilst this inability proved the antiquity of
the lineage, it was no evidence that these families had not sprung from
a remote common ancestor. The fact that persons were born in the gens,
and that each could trace his descent through a series of acknowledged
members of the gens, was sufficient evidence of gentile descent, and
strong evidence of the blood connection of all the gentiles. But some
investigators, Niebuhr among the number,[316] have denied the existence
of any blood relationship between the families in a gens, since they
could not show a connection through a common ancestor. This treats the
gens as a purely fictitious organization, and is therefore untenable.
Niebuhr’s inference against a blood connection from Cicero’s definition
is not sustainable. If the right of a person to bear the gentile name
were questioned, proof of the right would consist, not in tracing his
descent from the genarch, but from a number of acknowledged ancestors
within the gens. Without written records the number of generations
through which a pedigree might be traced would be limited. Few families
in the same gens might not be able to find a common ancestor, but it
would not follow that they were not of common descent from some remote
ancestor within the gens.[317]
After descent was changed to the male line the ancient names of the
gentes, which not unlikely were taken from animals,[318] or inanimate
objects, gave place to personal names. Some individual, distinguished
in the history of the gens, became its eponymous ancestor, and this
person, as elsewhere suggested, was not unlikely superseded by another
at long intervals of time. When a gens divided in consequence of
separation in area, one division would be apt to take a new name; but
such a change of name would not disturb the kinship upon which the
gens was founded. When it is considered that the lineage of the Roman
gentes, under changes of names, ascended to the time when the Latins,
Greeks and the Sanskrit speaking people of India were one people,
without reaching its source, some conception of its antiquity may be
gained. The loss of the gentile name at any time by any individual was
the most improbable of all occurrences; consequently its possession was
the highest evidence that he shared with his gentiles the same ancient
lineage. There was one way, and but one, of adulterating gentile
descent, namely: by the adoption of strangers in blood into the gens.
This practice prevailed, but the extent of it was small. If Neibuhr
had claimed that the blood relationship of the gentiles had become
attenuated by lapse of time to an inappreciable quantity between some
of them, no objection could be taken to his position; but a denial of
all relationship which turns the gens into a fictitious aggregation
of persons, without any bond of union, controverts the principle upon
which the gens came into existence, and which perpetuated it through
three entire ethnical periods.
Elsewhere I have called attention to the fact that the gens came in
with a system of consanguinity which reduced all consanguinei to a
small number of categories, and retained their descendants indefinitely
in the same. The relationships of persons were easily traced, no matter
how remote their actual common ancestor. In an Iroquois gens of five
hundred persons, all its members are related to each other and each
person knows or can find his relationship to every other; so that the
fact of kin was perpetually present in the gens of the archaic period.
With the rise of the monogamian family, a new and totally different
system of consanguinity came in, under which the relationships between
collaterals soon disappeared. Such was the system of the Latin and
Grecian tribes at the commencement of the historical period. That which
preceded it was, presumptively at least, Turanian, under which the
relationships of the gentiles to each other would have been known.
After the decadence of the gentile organization commenced, new gentes
ceased to form by the old process of segmentation; and some of those
existing died out. This tended to enhance the value of gentile descent
as a lineage. In the times of the empire, new families were constantly
establishing themselves in Rome from foreign parts, and assuming
gentile names to gain social advantages. This practice being considered
an abuse, the Emperor Claudius (A. D. 40-54), prohibited foreigners
from assuming Roman names, especially those of the ancient gentes.[319]
Roman families, belonging to the historical gentes, placed the highest
value upon their lineages both under the republic and the empire.
All the members of a gens were free, and equal in their rights and
privileges, the poorest as well as the richest, the distinguished as
well as the obscure; and they shared equally in whatever dignity the
gentile name conferred which they inherited as a birthright. Liberty,
equality and fraternity were cardinal principles of the Roman gens, not
less certainly than of the Grecian, and of the American Indian.
VIII. _The right of adopting strangers in blood into the gens._
In the times of the republic, and also of the empire, adoption into
the family, which carried the person into the gens of the family, was
practiced; but it was attended with formalities which rendered it
difficult. A person who had no children, and who was past the age to
expect them, might adopt a son with the consent of the pontifices, and
of the _comitia curiata_. The college of pontiffs were entitled to be
consulted lest the sacred rites of the family, from which the adopted
person was taken, might thereby be impaired;[320] as also the assembly,
because the adopted person would receive the gentile name, and might
inherit the estate of his adoptive father. From the precautions which
remained in the time of Cicero, the inference is reasonable that
under the previous system, which was purely gentile, the restrictions
must have been greater and the instances rare. It is not probable
that adoption in the early period was allowed without the consent of
the gens, and of the curia to which the gens belonged; and if so,
the number adopted must have been limited. Few details remain of the
ancient usages with respect to adoption.
IX. _The right of electing and deposing its chiefs; query._
The incompleteness of our knowledge of the Roman gentes is shown quite
plainly by the absence of direct information with respect to the
tenure of the office of chief (_princeps_). Before the institution of
political society each gens had its chief, and probably more than one.
When the office became vacant it was necessarily filled, either by the
election of one of the gentiles, as among the Iroquois, or taken by
hereditary right. But the absence of any proof of hereditary right,
and the presence of the elective principle with respect to nearly all
offices under the republic, and before that, under the _reges_, leads
to the inference that hereditary right was alien to the institutions of
the Latin tribes. The highest office, that of rex, was elective, the
office of senator was elective or by appointment, and that of consuls
and of inferior magistrates. It varied with respect to the college of
pontiffs instituted by Numa. At first the pontiffs themselves filled
vacancies by election. Livy speaks of the election of a _pontifex
maximus_ by the _comitia_ about 212 B. C.[321] By the _lex Domitia_
the right to elect the members of the several colleges of pontiffs and
of priests was transferred to the people, but the law was subsequently
modified by Sulla.[322]
The active presence of the elective principle among the Latin gentes
when they first come under historical notice, and from that time
through the period of the republic, furnishes strong grounds for
the inference that the office of chief was elective in tenure. The
democratic features of their social system, which present themselves
at so many points, were inherited from the gentes. It would require
positive evidence that the office of chief passed by hereditary right
to overcome the presumption against it. The right to elect carries with
it the right to depose from office, where the tenure is for life.
These chiefs, or a selection from them, composed the council of
the several Latin tribes before the founding of Rome, which was
the principal instrument of government. Traces of the three powers
co-ordinated in the government appear among the Latin tribes as they
did in the Grecian, namely: the council of chiefs, the assembly of the
people, to which we must suppose the more important public measures
were submitted for adoption or rejection, and the military commander.
Mommsen remarks that “All of these cantons [tribes] were in primitive
times politically sovereign, and each of them was governed by its
prince, and the co-operation of the council of elders, and the assembly
of the warriors.”[323] The order of Mommsen’s statement should be
reversed, and the statement qualified. This council, from its functions
and from its central position in their social system, of which it was
a growth, held of necessity the supreme power in civil affairs. It
was the council that governed, and not the military commander. “In
all the cities belonging to civilized nations on the coasts of the
Mediterranean,” Niebuhr observes, “a senate was a no less essential
and indispensable part of the state, than a popular assembly; it was a
select body of elder citizens; such a council, says Aristotle, there
always is, whether the council be aristocratical or democratical;
even in oligarchies, be the number of sharers in the sovereignty
ever so small, certain councilors are appointed for preparing public
measures.”[324] The senate of political society succeeded the council
of chiefs of gentile society. Romulus formed the first Roman senate of
a hundred elders; and as there were then but a hundred gentes, the
inference is substantially conclusive that they were the chiefs of
these gentes. The office was for life, and non-hereditary; whence the
final inference, that the office of chief was at the time elective.
Had it been otherwise there is every probability that the Roman senate
would have been instituted as an hereditary body. Evidence of the
essentially democratic constitution of ancient society meets us at
many points, which fact has failed to find its way into the modern
historical expositions of Grecian and Roman gentile society.
With respect to the number of persons in a Roman gens, we are
fortunately not without some information. About 474 B. C. the Fabian
gens proposed to the senate to undertake the Veientian war as a gens,
which they said required a constant rather than a large force.[325]
Their offer was accepted, and they marched out of Rome three hundred
and six soldiers, all patricians, amid the applause of their
countrymen.[326] After a series of successes they were finally cut off
to a man through an ambuscade. But they left behind them at Rome a
single male under the age of puberty, who alone remained to perpetuate
the Fabian gens.[327] It seems hardly credible that three hundred
should have left in their families but a single male child, below the
age of puberty, but such is the statement. This number of persons would
indicate an equal number of females, who, with the children of the
males, would give an aggregate of at least seven hundred members of the
Fabian gens.
Although the rights, obligations and functions of the Roman gens have
been inadequately presented, enough has been adduced to show that
this organization was the source of their social, governmental and
religious activities. As the unit of their social system it projects
its character upon the higher organizations into which it entered as
a constituent. A much fuller knowledge of the Roman gens than we now
possess is essential to a full comprehension of Roman institutions in
their origin and development.