Roman Public Life

by A. H. J. Greenidge

(i.) It has been held that the clans were the unit of voting in the original popular assembly at Rome, the comitia curiata.[40] But the passage on which this conclusion is based only implies that, originally, membership of this comitia depended on possession of a gens; eventually, at a time when the curia included Plebeians, on possession of a familia, and therefore presumably of a stirps or genus.

(ii.) A distinction is presented by ancient authorities between the gentes majores and minores—a distinction within the patrician gentes that survived into the Republic. Of the gentes minores we know but one name, that of the patrician Papirii;[41] a list of some of the gentes majores has been reconstructed with some plausibility from those clans which furnished principes senatus; they are the Aemilii, Claudii, Cornelii, Fabii, Manlii, and Valerii.[42] Tradition is inclined to represent this distinction as having originated politically,[43] but it is a tradition working on the impossible hypothesis that the Patriciate derived its origin from membership of the Senate. This political distinction doubtless existed within the Senate; but it was probably derived merely from the respective antiquity, and therefore dignity, of the gentes from which its members were drawn. And this association with the Senate leads us naturally to the third question connected with the political character of the gentes, i.e. their relation to the primitive council of the state. The theory of an ultimate connexion between the two originates with the correspondence of the number of the gentes and of the Senate. Both are given by tradition as 300. The Roman community is said to have originated with the amalgamation of three domains (tribus) into one.[44] The rise of the Senate from 100, its original number as constituted by Romulus, to 300 as its final number, is accounted for by the gradual amalgamation of these three tribes with their 100 gentes each.[45] A parallel to the original centumviral constitution of the Senate is found in the centumviri of the Italian towns, and is supposed to be derived from the same invariable division of a tribus into 100 gentes.[46]

The chief objections to this view are the symmetrical number into which it divides the gentes, and the fact that the Senate is, according to the best tradition, a body of nominees selected by the chief magistrate. But yet there is an element of truth in the theory. The Senate did rise from 100 to 300 in consequence of the incorporation of fresh elements into the community, and therefore in consequence of an increase of the gentes. The kings and early consuls would doubtless, in the exercise of their powers of selection, wish to see each of the patrician clans represented in their council. Hence the addition of new clans would add new members to that body, and hence the inferior place occupied in the Senate by the gentes minores, the younger branch of the Patriciate.

Although the clan itself was inexpansive, the number of the clans, even in the old patrician community, was not. It was possible for new gentes to be added to the community, and even for old gentes to quit it. Tradition speaks of the reception of six clans that had once belonged to the parent state of Alba—the Cloelii, Curiatii, Geganii, Julii, Quinctilii (or Quinctii), and Servilii;[47] and Sabine races as well, such as the Valerii,[48] are also said to have been admitted. The reception of new gentes was effected by the Patricians and, as we should expect, by the assembly which represents the whole patrician body, the comitia curiata, under the presidency of the king. They were coopted by their peers,[49] and it is improbable that the patrician order could have been recruited by the act of the king alone.[50] He might conceivably have chosen Plebeians as members of his advising body, the Senate, as the first consuls are said to have done,[51] although such a selection is extremely improbable; but even this act would not have raised such Plebeians to the Patriciate. The admission of new gentes implies that foreigners, or even a portion of the plebeian body, might be coopted into the Patriciate; in the former case it might be the reception, in the latter the creation, of a gens. This possibility of recruiting the patrician order—whether by the creation or reception of gentes—ceased during the Republic, because the assembly of the Curies came eventually to admit Plebeians, and there was no political assembly composed exclusively of members who fulfilled all the conditions of being gentiles. The only instance of the expulsion of a gens preserved by legend is that of the Tarquinii; and the decree that this whole clan had forfeited its right to be a member of the Roman state is said to have been passed by the Populus.[52]

The account of gentes being received into the Roman community is accompanied by a tradition of their keeping together in their new settlement. Thus the Claudii, on the reception of the civitas, are said to have received a special tract of territory across the Anio for themselves and their clients.[53] Such a tradition at once suggests a close connexion between the gens and the soil, which there is no reason to doubt. But the further questions have been raised, whether the gens as a whole was the owner of the land on which it settled, and whether this was the form of common possession recognised in early Rome. It must be admitted that tradition knows nothing of such a tenure. Dionysius represents the territory given to the Claudii as destined to be divided up amongst the various familiae of the gens;[54] while in other accounts of land-assignments we hear of such being made to the curia (φράτρα)[55] or to individuals (viritim),[56] but never to the clan. Yet a plausible theory of common possession has been based on the survivals both of legal terms and of clan rights.[57] Amongst the terms describing early territorial possession we have, apart from ager publicus, the heredium and the ager privatus. The private possession of the heredium is attributed to Romulus,[58] and is thus regarded as a modification of some form of common tenure; and the heredium consisted of only two jugera,[59] an amount obviously insufficient for the maintenance of a family. Hence there must have been ager privatus as well, owned by some larger unit, and this unit would naturally have been the gens. It has also been thought that the terms descriptive of individual ownership—manus, mancipium—referred originally to movables,[60] as though immovables belonged to a common stock. Lastly, we find connected with the clan the survival of a corporate right to property and collective duties connected with it. According to the rules of regular intestate succession, in default of the suus heres, property lapses to the proximus agnatus and then to the gentiles;[61] and it was in connexion with this right, which lasted down to the end of the Republic,[62] that the definition of a gentilis was of such legal importance.[63] This inheritance is by the gentiles as a whole, for there is no proximus gentilis, and in historic times it must have been an inheritance by individuals, the property being divided amongst those who could prove their claim; but it may be the relic of an earlier inheritance by the gens as a corporation.

But the gentiles have rights in a corporate capacity as well. By the Twelve Tables they have the guardianship of the insane[64] and a reversionary right of guardianship over women and children.[65] Guardianship (tutela) must have given them all the rights of a person in Roman law, to exercise which they must have had a personal representative. But this devolution itself shows the gens acting as a corporation.

Of corporate action in their own interests, or with a view to the interests of the state, there is little evidence, although there are traces of common activity for the purpose of keeping up the dignity of the family. The patrician Claudii repudiate by common agreement the praenomen “Lucius,” because two of its bearers had been respectively convicted of highway robbery and murder,[66] and the patrician Manlii renounce the praenomen “Marcus” in consequence of a crime committed by a clansman of that name;[67] but such an agreement could hardly in historical times have had other support than the will of individual members to observe it. Perhaps the closest of the later ties of the gens were its common worship and sacrifices. They never, as in Greece, rose to the rank of great public worships, but excessive care was taken by the state to maintain them; chiefly from the view that, if the worship of a race died out, the community would lose the favour of the divinity to which it had belonged. Hence the close connexion of gentile sacra with property and inheritance.[68] Property, in the last resort, passed to the gentiles; and the sacra, that they might be maintained, were a necessary burden associated with it. For the sacra to pass out of the family was of little importance; had they passed out of the gens, there was no security for their continuance. In cases of transition from a family of one clan to a family of another, it was the duty of the pontifices to inquire how the continuity of the sacred rites might be maintained,[69] and hence one of the forms observed in the case of a change of gens by adrogation was the sacrorum detestatio, a public declaration that the individual who sought this change had ceased to claim any participation in the sacra of his race. The care for the continuity of the sacra of the clan was long one of the professed, and perhaps real, bars to marriage between Patricians and Plebeians.[70]

This question of the sacra is an index to the fact that membership of a gens might be either natural or artificial. The natural mode of entrance was by birth; and in the case of the patrician clans, before the right of intermarriage was extended to the Plebs, marriage with a patrician mother and by the ceremony of the confarreatio was necessary to constitute gentilitas for the child. Later any form of marriage sufficed, as it had doubtless always done in the case of the plebeian clans. The child, in accordance with the patriarchal principle, belonged to the clan of his father.

The form of religious marriage peculiar to the Patricians necessitated a change of gens on the part of the wife; for a woman married by the ceremony of confarreatio became a partner in the property and sacra of her husband,[71] and there is even some trace of her having originally changed her gentile name as well.[72] The ordinary plebeian form of marriage by mere agreement (consensus), which ultimately became almost universal, did not lead to a woman’s falling into the potestas of her husband, unless this power were assumed, originally by prescriptive right (usus), later by the ceremony of fictitious purchase (coemptio). In such a case she became a member of her husband’s family, but it is questionable whether the logical conclusion was pressed and she also became a member of his gens. The anomaly, if it existed, may perhaps be explained by the fact that the Plebeians, who evolved these forms of marriage, had, as a rule, no gentes.

The clan might also be changed by adoption. Adrogatio—perhaps the only form known to the old patrician community—was the method by which the head of a family voluntarily submitted himself to the potestas of another. Adoptio, on the other hand, was the change from one potestas to another. If there was a form of true adoption by patrician law,[73] it has been lost to us, and the earliest that we hear of is the plebeian form by threefold sale recognised in the Twelve Tables. At a later period it might also be effected by a written testament.